Is Randy Mastro the next Hector LaSalle?

From a political standpoint, New York City Mayor Eric Adams’ nomination of Randy Mastro to lead the city Law Department and Gov. Kathy Hochul’s ill-fated nomination of Hector LaSalle to be the state’s top judge share some similarities. In both cases, an executive nominated someone that the legislative branch does not like in the hopes that lawmakers would confirm them to the important position anyway. After all, the City Council has very rarely and the state Senate had never rejected such a nominee before (a fact that changed after LaSalle). Both Mastro and LaSalle were considered insufficiently progressive for the legislative bodies tasked with approving the nominations. And Adams is now beginning to roll out a charm offensive by touting Mastro supporters much like Hochul tried to rally outside support for LaSalle before his nomination failed.

There are certainly some parallels, but the City Council seems poised to avoid the same pitfalls that befell the state Legislature. Adams formally nominated Mastro as the city’s top lawyer on Tuesday, moving forward with his controversial pick for corporation counsel despite significant opposition from the City Council. Many members have voiced strong reservations about Mastro’s history defending what they’ve seen as controversial interests since word broke Adams was planning to nominate him. Given that corporation counsel is one of the handful of positions for which the City Council currently has “advice and consent” power, Mastro will need to be confirmed by a majority of the 51-members before he can be appointed – something the City Council has said it will consider by mid-September. 

The City Council has 30 days from the first stated meeting after a mayoral nomination to approve or reject that nominee, otherwise they automatically get approved. It’s an extra consideration for the City Council that state lawmakers did not have to contend with. While some gubernatorial nominees have a clock, those for the Court of Appeals do not. 

Much like the state Senate Judiciary Committee needed to first consider LaSalle, Mastro will need to make it through the City Council’s Committee on Rules, Privileges and Elections where he’d need to be approved before moving to a full vote. That hearing is currently scheduled for August 27. While things could change in the coming weeks if City Council Speaker Adrienne Adams decides she wants to proceed with Mastro’s nomination, Mastro currently doesn’t appear to have the votes in the committee to win its approval. 

“This is going to be really up to the speaker at the end of the day to decide whether she wants to move the mayor’s nominee and put together the votes to help get Randy Mastro to the finish line. I don’t think there’s a lot of evidence to date, if that’s the case,” said a City Council member familiar with the process.

But while Mastro may not win the committee’s approval, that won’t necessarily be where his nomination dies. Anticipating the potential legal consequences of killing his nomination before it gets in front of all 51-members, the City Council plans to ensure there’s a full floor vote regardless of what happens in committee. That guarantee could help the City Council avoid the legal complications lawmakers faced in Albany with LaSalle.

When the state Senate Judiciary Committee voted not to advance LaSalle’s nomination, Democratic lawmakers considered the matter done – they believed they had fulfilled their constitutional advice and consent responsibility. But not everyone agreed. Republican state Sen. Anthony Palumbo sued to get LaSalle onto the floor for a full state Senate vote, arguing that a committee vote did not suffice. Ultimately, lawmakers brought the nomination to the floor – and rejected LaSalle again – before Judge Thomas Whelan had a chance to rule in the case. 

But despite the apparent mootness, Whelan offered a determination. He ruled that the full state Senate would need to hold a vote on any future gubernatorial nominees to the Court of Appeals. “This Court must conclude that the practice adopted by the defendants is not allowed under the Constitution,” Whelan wrote in his decision of Democrats’ position. “The judiciary committee does not have the constitutional duty for ‘advice and consent.’”

That ruling has no direct bearing on the City Council, but similarities in the language for advice and consent between the state constitution and the city charter could have opened the door to a similar lawsuit. Per the state constitution, the governor shall appoint a chief judge nominee “with the advice and consent of the senate.” Although Democrats argued that the Judiciary Committee constitutes the Senate, a judge disagreed. The city charter states that for mayoral nominations, “the council shall hold a hearing and act upon such nomination.” 

The New York City Council’s legal team isn’t taking any chances. "In accordance with the City Charter, there will be a full Council vote on the nomination, regardless of the outcome of the committee vote," a City Council spokesperson said in a statement.