The 3 nominees progressives won’t tolerate on New York’s highest court

Before the end of the year, Gov. Kathy Hochul will nominate one of seven possible candidates to be the chief judge of the Court of Appeals, the state’s highest court. As usual, the state bar association and state trial lawyers association have interviewed all of the candidates and rated their qualifications. But for the first time, a coalition of criminal justice reform groups and advocacy organizations with close ties to progressives in the state Senate has released its own assessments of the candidates, determining that three of them are so conservative as to be “unacceptable.”

This coalition, which calls itself “The Court New York Deserves,” includes the criminal justice reform group the Center for Community Alternatives, the state Working Families Party, immigrant rights advocacy group Make the Road New York, the United Auto Workers Region 9A union and more than 100 other groups.

As City & State previously reported, in August these groups sent a letter to Hochul encouraging her to nominate a progressive as chief judge in order to counter the Court of Appeals’ recent drift to the right. In response, the governor said that she would not make any decisions until the Commission on Judicial Nomination released its shortlist of seven potential candidates for the position.

The day before Thanksgiving, the Commission released the list of candidates:

• Anthony Cannataro, associate judge of the Court of Appeals and acting chief judge
• Hector LaSalle, presiding justice of the Second Department (Brooklyn/Queens) appellate courts
• Jeffrey Oing, associate justice of the First Department (Manhattan/Bronx) appellate courts 
• Edwina Richardson-Mendelson, deputy chief administrative judge for justice initiatives and judge of the Court of Claims
• Abbe Gluck, professor at Yale Law School and Yale School of Medicine
• Alicia Ouellette, dean of Albany Law School
• Corey Stoughton, attorney-in-charge of special litigation and law reform at the Legal Aid Society

Two names missing from the list are current Court of Appeals associate judges Shirley Troutman and Rowan Wilson. Troutman was nominated to the Court of Appeals by Hochul last year, and many observers expected she would be Hochul’s favored pick for chief judge, while Wilson was favored by progressives for dissenting from DiFiore's majority opinions. According to New York Focus, both judges applied for the chief judge position, but were snubbed by the commission.

In the days after the shortlist was released, The Court New York Deserves organizers researched and analyzed the candidates’ judicial histories to determine whether they tended to rule more for “powerful interests” (prosecutors, police, corporations, landlords) or “vulnerable New Yorkers” (criminal suspects, tenants, workers). On Thursday, The Court New York Deserves released its dossier on each of the seven candidates.

As a result of this analysis, the coalition announced that either Stoughton, Gluck or Mendelson would be an “excellent” pick to be the next chief judge, while Cannataro, LaSalle and Oing would be “unacceptable” picks for chief judge. (The group took no position on Ouellette).

The Court New York Deserves is not the only group evaluating the seven candidates. The New York State Trial Lawyers Association and New York State Bar Association have traditionally interviewed and rated every candidate for a Court of Appeals spot, and this year was no exception.

What “unacceptable” means

Among the three reviews, there is consensus that Gluck and Mendelson-Richardson are highly qualified and recommended candidates. Although there is some overlap, The Court New York Deserves is approaching the question of what makes a good chief judge in a different way than the nonpartisan professional legal associations are. The progressive groups are less concerned with the candidates’ professional accomplishments than they are with their political values. 

“We think that three of the candidates have records that demonstrate that they would not successfully tackle some of the deepest problems that everyone acknowledges the New York state court system has,” said Peter Martin, director of judicial accountability at the Center for Community Alternatives and the lead organizer behind The Court New York Deserves. “They would, as judges on the high court, perpetuate harms through their decisions.”

The three candidates that the coalition deemed “unacceptable” are all current appellate judges.  To better understand how their values might inform their actions as chief judge, Martin and the coalition’s other volunteer researchers focused on cases in which multiple judges who heard the case came to different conclusions. Martin said that in such split decisions, judges Cannataro, LaSalle and Oing tended to vote against criminal defendants, workers and other less powerful groups. 

Cannataro is widely considered a conservative vote on the Court of Appeals, frequently joining 4-3 and 5-2 decisions against the court’s liberals. In a case earlier this year, Cannataro joined a conservative majority opinion that denied relief to charter school teachers who had their wages stolen. In another case, Cannataro and the conservative majority ruled that there was no way for a lower court to know that a criminal defendant wished to represent himself pro se, despite him saying “I would love to go pro se” during a court hearing.

LaSalle is one of the most conservative judges in the appellate courts, frequently dissenting from majority opinions that reversed criminal defendants’ convictions, even in cases where other judges found that the police overstepped their authority. In one particularly notable case, four out of five judges reversed a man’s burglary conviction after ruling that the police lacked probable cause when they first arrested him. LaSalle was the only judge to disagree.

Oing has also dissented from majority opinions in ways that alarm criminal reform groups. When a three-judge majority ruled that state forensics labs could not conduct DNA searches of family members of criminal suspects, Oing joined a dissent arguing that any claims that such a search would violate the family members’ privacy were merely hypothetical. In another case, Oing dissented from a three-judge majority decision to reduce the 14-year prison sentence of an intellectually disabled man who had plead guilty to attempted murder.

Hochul must nominate one of the seven candidates on the shortlist before Dec. 23. When the state Senate reconvenes in January, it will have to vote on whether to approve the nomination.

Whipping up state Senate votes

Since the shortlist was released, Martin and other coalition representatives have met with more than 20 senators’ offices to discuss the coalition’s analyses of the seven chief judge candidates and the reasons why Cannataro, LaSalle or Oing would be an unacceptable pick.

“We've had conversations with many senators and Senate offices and have found them to be overwhelmingly receptive to the information we've shared and our assessments of candidates,” Martin said. “We've spoken to senators who share our concerns about the candidates that we have concerns about.”

Of course, the senators aren’t the ones who choose which candidate to nominate for the chief judge pick. That is ultimately the governor’s decision. But the senators do have some leverage over the governor, since they could theoretically vote not to approve the nominee.

In order to be approved, a nominee would require at least 32 votes in the Senate. Next year’s Democratic caucus will number either 41 or 42 members, depending on the results of an ongoing recount. Assuming all the Republican members of the Senate vote against Hochul’s nominee, she could not afford to lose more than nine or ten Democratic votes.

No one is spoiling for a fight against the governor, but deeming three of the candidates unacceptable carries an implied threat – if you nominate one of these candidates, we will whip votes against them. 

Since last year, progressive activists and senators have organized to oppose conservative nominees to the Court of Appeals. The Court New York Deserves grew out of two previous, unsuccessful nomination fights  – “Stop Singas” (a failed campaign to block former Gov. Andrew Cuomo’s nomination of conservative district attorney Madeline Singas to the Court) and “UnCuomo the Court” (a failed campaign to push Hochul to nominate a public interest lawyer to the court). 

Heading into 2023, the progressive coalition has never been more organized or influential. In particular, The Court New York Deserves has been in frequent contact with Senate Deputy Majority Leader Michael Gianaris, the second-highest-ranking Democrat in the state Senate. Gianaris, who says that he now regrets supporting Singas’ nomination, has spoken publicly about the need for a progressive chief judge. (Gianaris could not be reached for comment.) 

In August, Gianaris and state Senate Judiciary Committee Chair Brad Hoylman co-authored a letter, signed by 20 Democratic senators, encouraging the Commission on Judicial Nomination to select candidates with a “demonstrated commitment to providing justice to the most vulnerable.”

The ultimate goal of the coalition is to convince the governor that it would be better to nominate one the three excellent candidates (Stoughton, Gluck or Richardson-Mendelson) and have the nomination sail through the Senate, rather than nominate one of the three “unacceptable” candidates and face a nomination fight.

“We have faith that Gov. Hochul will see the candidates more or less the way we see them, and we believe she will nominate someone excellent for the role,” Martin said. “If the nominee is someone who we believe would be harmful, we will be calling on senators to do the right thing by their constituents and by New Yorkers and vote no.”