Our Take on LaSalle Nomination Process: Disagreement Is Not Dysfunction, It Is Part of a Healthy Democracy

Reinvent Albany has been asked by a number of media outlets what we think about the Senate’s advice and consent power and the Senate Judiciary Committee’s vote not to advance the Governor’s nominee for Chief Justice, Judge LaSalle. There are a number of  big questions being raised because the Senate rarely rejects the governor’s nominees in a vote – controversial nominees are typically floated and withdrawn in private consultation between the Governor and Senate before nominations are made public. 

1. Disagreement is part of democracy. Disagreement is not dysfunction. We disagree with critics of both the Governor and the Senate who say the controversy over Judge LaSalle is somehow irresponsible, unethical, or feckless. If the branches of government are doing their jobs, there will be disagreements over nominees as well as constitutional powers and authority. 
   
   
2. We have seen reasonable constitutional arguments both ways on whether advice and consent means the full Senate has to vote on Judge LaSalle’s nomination or a committee vote is enough. Top constitutional scholars disagree, and we do not know who would prevail if the Governor sues the Legislature, because this is an untested area of law. We philosophically favor more participation and more voices in the democratic process, whether that means making it easier for the public to vote in elections or full votes of the Senate on top court nominees. That said, we appreciate the Senate asserting itself and acting as more than a rubber stamp to the Executive on this extremely important appointment. 

3. What’s fair? We think Judge LaSalle got a fair public hearing from the Senate Judiciary Committee. He was able to highlight his strengths and respond to criticism. Senators asked thoughtful questions and got thoughtful answers. The larger question is whether it is unfair that the entire Senate did not vote on his nomination and this gets to some basic questions about representative democracy and the separation of powers that the constitution is unclear about.