Does the New York Constitution Require A Senate Vote For A Judicial Nominee?
Think back to February 2016. Shortly after Justice Scalia’s passing, Senate Republicans immediately coalesced on a strategy: any nominee by President Obama would not get a floor vote, let alone a confirmation hearing. Almost just as quickly, a constitutional argument formed out of the ether: the Senate had an obligation to vote on a President’s nomination to the Supreme Court. I was an early critic of this view. The Harvard Law School Federalist Society Chapter invited me to debate this topic. Alas, no one on that august faculty was willing to debate me. So I debated myself. I articulated the views that Tribe and others advanced, as charitably as I could, then responded to those views. Seven years later, I had thought this argument would recede into history. It was not to be.
In New York there is a conflict between the executive and legislative branches. Governor Kathy Hochul nominated Hector LaSalle to serve as Chief Judge of the New York Court of Appeals (the highest court in the state). Progressives in the state charge that LaSalle is too moderate, or even (gasp!) conservative. I have zero interest in the politics of this internecine battle in a deep blue state. But there is a constitutional angle.
LaSalle might have enough votes to be approved on the Senate floor–especially if Republicans back the nominee. But it is not clear he has enough votes to get out of the judiciary committee. Aha! Governor Hochul has argued that the state Constitution requires the full Senate to vote on her nominee. The committee vote is irrelevant.
“He’ll have his hearings; he’ll answer questions; and then as required by the Constitution, the full Senate must decide because the Constitution says it’s on the advice and co
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