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Hochul moves to hire litigator, potentially escalating chief judge fight

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New York Governor Inauguration Gov. Kathy Hochul

New York Gov. Kathy Hochul delivers her inauguration address, Sunday, Jan. 1, 2023, in Albany.

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ALBANY – Gov. Kathy Hochul's office is in the process of retaining a high-powered litigator ahead of a possible legal battle over her nominee to be New York's top judge, according to people with knowledge of the matter.

The move may escalate an already-tense situation between Hochul, who has continued to push Hector LaSalle’s candidacy despite fierce opposition from her political left, and state Senate Democrats charged with confirming or rejecting him. LaSalle, a state appellate court judge, was selected by Hochul in December to be the chief judge of the state Court of Appeals.

Hochul's office is in the process of retaining Caitlin Halligan, a partner at the New York City-based law firm Selendy Gay Elsberg. Halligan served as solicitor general of New York from 2001 to 2007 and is an accomplished appellate attorney.

Julie Wood, a Hochul spokeswoman, said a final contract had not yet been signed. In a statement, she suggested that no final decision had been made about whether litigation would be filed by Hochul's office if LaSalle's candidacy fails to be voted upon by the full State Senate.

"We have of course been consulting with various experts on the process, but that does not mean we are set on any particular course of action," Wood said.

On Wednesday morning in Albany, the state Senate Judiciary, which is controlled by majority Democrats, is hearing testimony from LaSalle, a crucial step in a fight already more adversarial than any chief judge confirmation process in memory.

LaSalle's nomination has sparked significant opposition among the Senate Democratic conference, with 14 members already coming out against his confirmation. If his nomination is voted down in the Senate Judiciary Committee, which is a significant possibility, Hochul's office may sue the Senate in an attempt to force a vote by the full chamber.

Halligan's biography on her law firm's website describes her as "one of the nation’s leading appellate attorneys," having argued six cases and served as the counsel of record in more than 45 matters before the U.S. Supreme Court, while also handling many cases in the federal appellate courts, the New York Court of Appeals and other state appellate courts.

On Tuesday, the former counsel to Gov. George Pataki, James McGuire, sent a lengthy letter to Democratic Senate Majority Leader Andrea Stewart-Cousins and Senate Judiciary Committee chairman Brad Hoylman-Sigal, laying out a case that killing LaSalle’s nomination in the Judiciary Committee would be illegal. The letter was obtained by The Buffalo News.

Last week, Hochul argued along similar lines: That the “constitution of the State of New York is clear: the New York State Senate has to advise and consent the governor on her appointment.”

But Hoylman-Sigal, the Judiciary Committee chair, believes that if LaSalle is voted down in that committee, his candidacy would be dead. Hoylman-Sigal and a number of other Senate Democrats believe the body has the power to kill a chief judge nomination in the Judiciary Committee.

Events are moving quickly. As the hearing kicked of Wednesday, Hoylman-Sigal said that the Judiciary Committee was expected to take a vote at the  hearing's end on whether to advance LaSalle's nomination.

On Wednesday morning, the government-reform group Common Cause NY, which is part of a liberal coalition that opposes LaSalle's nomination, slammed the Hochul administration for moving to hire a litigator.

"Common Cause/NY is horrified to learn that Governor Hochul is contemplating hiring a litigator at taxpayer expense to violate the constitutionally protected separation of powers," said the group's executive director, Susan Lerner, in a statement. "Make no mistake: doing so would be a total abuse of power, and a brutal attack on a democratically elected institution. It would throw the decision about who sits on the courts to the courts in an unprecedented conflict of interest, as well as setting the disturbing precedent that a Governor can use the courts to bludgeon the Legislature every time she doesn't get her way."

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The 10-9 vote on Wednesday afternoon was a historic rebuke of Hochul by members of her own Democratic Party, one potentially setting up a major legal fight between the Democratic-controlled state Senate and the Democratic governor.

On Wednesday, the state Senate Judiciary Committee held its vote killing Hector LaSalle's nomination to be chief judge of the state Court of Appeals minutes after he finished detailed testimony on a wide variety of complex judicial rulings.

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