Prejudge Me Not: The Nomination of Hector LaSalle to the NYS Court of Appeals and the Parker Portent
Why the Selection Process of Judges to State Courts Matter
On March 21, 1930 John Johnston Parker — a federal judge on the 4th Circuit Appellate Court — was nominated to the U.S. Supreme Court by President Herbert Hoover, replacing Justice Edward Terry Sanford who died after complications from a dental procedure. Because of John Parker’s initial positive bipartisan reception, support from the judicial community, and recent history of relative smooth sailing of presidential nominees, Parker seemed well on his way of becoming a Supreme Court Justice. But why haven’t you heard of Supreme Court Justice John J. Parker? Because in the end the U.S. Senate rejected his nomination — including many members of President Hoover’s Republican Party — during a highly contentious confirmation process.
Parker’s failed bid broke 36 years of U.S. Senate approval of 21 presidential nominees to the nation’s highest court. In those three and a half decades before Parker, not one nominee had to withdraw from consideration or was rejected because of impenetrable opposition in the Senate. At the time, one had to go all the way back to 1894 during Grover Cleveland’s presidency for the last time a president’s nominee was rejected by the Senate (Local angle: Albany Law School alum, Wheeler Peckham’s nomination was defeated 32–41).
Judge LaSalle and the Parker Portent?
More than 90 years after Parker’s failed bid, Judge Hector LaSalle — the presiding justice of the 2nd Judicial Department’s Appellate Division in New York — was recently nominated by the Governor to serve as chief judge on New York State’s highest court — the Court of Appeals(1). Like Parker, Judge LaSalle is facing strengthening political turbulence from growing opposition in the state senate from members of the Governor’s own political party. It is too early to tell if the turbulence is simply an uncomfortable part of the flight that ultimately makes it to its intended destination, or whether it’s something more serious forcing an emergency landing. In other words, will Judge LaSalle meet Judge Parker’s fate?
Although the musician, Sting croons that “history will teach us nothing”(2), there are a number of important parallels between the two judges that makes the Parker affair either an ominous portent or a roadmap on how to successfully navigate the plane through the political turbulence. Either outcome could have a potential lasting impact on future nominations in New York and perhaps how states choose judges generally.
Why compare Judge LaSalle’s situation to something that happened more than 90 years ago? Even though Parker was nominated to the federal bench and LaSalle a state court, there are ghosts of John Parker’s nomination in LaSalle’s current situation.(3)
A word of caution in comparing state and federal judicial appointments. There are key differences between the federal and New York state systems. Unlike the federal system where a president may select virtually anyone they want to serve on the Supreme Court — subject to U.S. Senate confirmation(4), New York has a merit-based system. In New York, there is a formal nonpartisan judicial screening committee that presents the governor a fixed list of three to seven “well-qualified”(5) candidates to choose from — and the commission usually submits seven candidates, including the list Judge LaSalle was on to replace the former Chief Judge, Janet DiFiore. The Governor chooses one and the state senate must confirm the appointment(6).
First, Like Parker, LaSalle Faces Choppy Waters After Decades of Relatively Smooth Confirmation Sailing
Ever since the people of New York voted to change the State Constitution from electing justices to the Court of Appeals to a merit-based system — where the governor selects individuals from a list provided by a non-partisan judicial screening commission, followed by state senate confirmation in the late 1970s — a judge has never been rejected by the state senate. In other words, like Parker’s nomination at the time, LaSalle’s nomination was made during a period of relative smooth sailing and stability of confirming judges to the court. Like Parker, LaSalle is facing considerable headwinds which has not been the case for other judges in recent history.
Second, Both Judges Felt the Rise of Pressure Groups in Influencing the Confirmation
Judge Parker’s failed process was a result of the rise of interest groups’ ability to greatly influence the outcome of Supreme Court confirmations. Richard Watson, Jr. wrote an important piece in 1963 on Parker’s experience called, “The Defeat of Judge Parker: A Study in Pressure Groups and Politics.” In it, Watson found two converging forces — organized labor and racial justice groups (specifically the NAACP) effectively mobilized Senators (afraid of electoral ramifications) against Parker. In essence, organized pressure groups ultimately drove the Senate to reject Parker’s nomination — virtually unheard of at the time. LaSalle’s current confirmation process, likewise, could be a shift towards greater influence of interest groups in the New York State Court of Appeals selection process.
First, organized labor strenuously opposed Parker because of his appellate court’s unanimous decision that followed a Supreme Court precedent and allowed an injunction to stop organized labor from interfering with coal mining operations. Today LaSalle faces considerable opposition from organized labor — with labor citing his court’s unsigned decision to allow a major communications corporation to continue a defamation suit against members of a union in their private capacity.
The second group that effectively derailed John Parker’s nomination was the NAACP. Before Parker was confirmed to the federal bench, he ran for Governor of North Carolina in 1920. It was revealed that he made a speech arguing Black residents in North Carolina wanted to be disenfranchised. Although it was a more complicated an nuanced situation that Parker tried to explain — while also balancing Senate support from the South — it resulted in the erosion of key support in the U.S. Senate.(7) For a good overview of the this, read Kenneth W. Goings, The NAACP Comes of Age: The Defeat of Judge John J. Parker.
Like Parker, LaSalle is facing opposition on another front as well. LaSalle has also been criticized for one of his appellate court’s decisions over pregnancy crisis centers— resulting in the accusation that he is anti-choice. So, in the heat of the confirmation battle, both judges were faced with a one-two interest group punch.
In the end, the ultimate strike against both Parker and LaSalle is that they were/are deemed too conservative from progressive voting blocs in the legislature — even if the facts from their overall careers don’t really show that to be true. In a political calculation, opponents of both judges believe(d) there were/are safer alternatives that better reflect their progressive ideals(8).
Take the examples above. Both labor cases on their face could be construed as anti-union, but one court expert said opposition in LaSalle’s case was “overblown” because the court ultimately dismissed the defamation suit against the union and the members in their official capacity. Likewise, even some of Parker’s detractors in the U.S. Senate “admitted that in upholding the injunction [against the union] Parker could have been simply following a precedent established by the Supreme Court…” — something appellate courts must do(9).
In the second instance, there is a real difference between Parker and LaSalle. Parker had real liabilities around race — there was still a need for a racial reckoning, even for a progressive Republican in the South — and opposition was a result of his political statements as a candidate. For LaSalle, the case in which he has been branded anti-choice was neither written by him, nor was it really about abortion at all — it was about overbroad subpoenas issued by the state’s attorney general’s office. Therefore, the nexus between LaSalle’s court’s decision on limiting an over-broad subpoena and being anti-reproductive freedom seems tenuous at best.
Third, There Was (is) a Confrontation Over Process
In each case, process became an important part of the story. When Hoover and Parker’s supporters realized his nomination was in trouble, they offered to have Judge Parker testify before the Senate. While that is commonplace today, it was unheard of at the time. However, the Senate rejected Parker’s offer to appear in the Senate and the Senate Judiciary Committee quickly acted against Parker’s nomination. As Richard Watson states, “A vigorous debate [over having Parker testify] followed, and…then in a ‘swift and unexpected action,’ the committee voted by a ten to six margin to report the nomination adversely.”(10)
Likewise, LaSalle’s supporters and detractors are arguing over hearings as well, with some saying LaSalle should be afforded the right to appear before the state senate to discuss his career, rulings, and judicial philosophy, while many detractors saying they’ve seen enough and plan to vote no regardless of if the senate holds any confirmation hearings.
Fourth, Both Parker and LaSalle Face a Similar Political Scoreboard
Both chief executives — President Herbert Hoover and Governor Kathy Hochul — ran into (is running into) political opposition in the legislature from their parties unwilling to move against key interest groups. Parker needed support from the opposition party — Democrats — in order to be confirmed. Of the 56 Republicans in the majority in U.S. Senate in 1930, Republican president Hoover’s nominee lost 17 in the final vote and even though Parker won the support of 10 Democrats — largely from the factional southern states — it wasn’t enough.
Like Parker — LaSalle is facing a similar political scoreboard, but the outcome is still unknown. As of this posting there are 14 Democratic state senators in their 41-member supermajority publicly opposed to LaSalle’s confirmation. That means it will take Republican support to get the LaSalle’s confirmation over the finish line. Whether the initial reports of a growing number of state senators from the Governor’s own party announcing their opposition to Judge LaSalle’s nomination suggests serious trouble is still too early to tell, but trouble is brewing and may force the Governor to withdraw LaSalle’s nomination or the unheard of outright rejection by the Senate.
How States Choose Judges Matter
Why is any of this important? Because the independence of courts matter and how judges are ultimately selected is an essential piece of that puzzle. While much of the public’s attention centers on high profile U.S. Supreme Court cases, state judiciaries have major impacts on our lives as well — so how a state appoints its judiciary matters. There a various models used across the country, with states often tinkering with their systems. As mentioned above, New York adopted a merit-based system in the 1970s for the Court of the Appeals, replacing elections of the justices, but there are judges in New York who still run in elections, like Supreme Court (the lowest level in NY) justices. Groups, like the New York State Bar Association, have long advocated for replacing elections with merit selection.(11)
Why is any of this important? Because the independence of courts matter and how judges are ultimately selected is an essential piece of that puzzle.
In California, selection of judges to their highest court (the Supreme Court) is a mixed merit-based and election model.(12) The seven member California Supreme are appointed by the governor, but subject to review and confirmation by a three member Commission on Judicial Appointments(13) and then approved by a majority of Californian voters. If a majority of voters approve the justice, they get a full 12-year term. If a majority reject the justice, the governor must nominate a replacement and the justice serves until their retention election — subject to confirmation by the state’s Commission on Judicial Appointments.
The California system has had some notable examples of judges being removed from office in elections, including Chief Justice Rose Bird who was ousted by the people because of her opposition to the death penalty. The California model has real world implications. In other words, it is important how states design their systems.
Constitutional roles, responsibilities, and powers are a constant balancing act — an ongoing work in progress. There is no right answer divined from any objective place. Even in a merit system, New York’s Commission on Judicial selection are not Platonic philosopher kings and the state senate has an important constitutional function of confirming nominees to the Court of Appeals.
But any knee-jerk reaction in the current LaSalle confirmation process may have unintended lasting impacts that we may not fully yet understand. In the 1970s the goal was to depoliticize the highest court and that is why New York transitioned from electing Court of Appeals justices to the merit system we have today. Our current system was a hard-fought bright spot over the Rube Goldberg machine called the New York State judicial system — which experts are continuing to fight to reform. Like Parker’s failed nomination, whatever happens here could have serious implications on how future justices are selected to New York’s highest Court, including dramatically altering the nonpartisan merit system New York established.
But any knee-jerk reaction in the current LaSalle confirmation may have unintended lasting impacts that we may not fully yet understand.
As CUNY Law Professor Steve Zeidman said in a 2005 Albany Law Review article, “We changed the way, in our lifetime, that we select judges to the Court of Appeals. New York switched from elections to an appointive system. Is the appointive system ideal? Hardly. More important to ask is whether it is superior to elections. No doubt.”(14)
After Parker’s nomination was defeated, President Herbert Hoover nominated Owen Roberts two days later. Roberts was confirmed by voice vote —meaning Roberts had so much support that an official vote wasn’t even taken — in the Senate 11 days later. What a difference a new nominee makes.
Roberts became a swing vote on the Supreme Court and most famously known as the vote “switch in time that saved nine” that eventually resulted in the Supreme Court changing course on FDR’s New Deal in the face of Roosevelt’s court packing plan. If LaSalle’s confirmation fails, who on the list would the Governor elevate next, and will they have a similar impact on history?
Or if LaSalle’s nomination fails, will we look back on this moment with regret, like some did with Parker? As Richard Watson said,
“When one evaluates Parker’s record as Circuit Court judge especially in the twenty-five years after his failure to reach the Supreme bench, one might wish that he [Parker] had been confirmed. Probably few would differ with the conclusion [citing the New York Times] that he became ‘one of the most distinguished jurists on the Federal bench.’ In 1946, the American Bar Association Journal, surveying Parker’s record of twenty years on the Circuit Court, called the Senate’s refusal to confirm the ‘most regrettable combinations of error and injustice that has ever developed as to a nomination to the great court.’”(15)
Whatever happens, let’s hope that years from now we don’t have a similar case of buyer’s remorse.
Author’s Note:
Much of the research is part of my in-process book manuscript, The Supreme Spectacle: How a Footnote in History Became the Foundation of the Modern Supreme Court Confirmation Process.
Reference Notes:
(1) In New York, the Supreme Court is the lowest level and the Court of Appeals is the court of last result. See the Report and Recommendations of the New York State Bar Association Committee on the New York State Constitution: The Judiciary Article of the New York State Constitution — Opportunities to Restructure and Modernize the New York Courts.
(2) To be fair, this is a great song from a phenomenal album with an all-star lineup.
(3) While others nominated to the Supreme Court have been rejected or withdrawn because of Senate opposition since — including individuals nominated by Lyndon Johnson, Richard Nixon, Ronald Reagan, George Bush, and unusual case of Barrack Obama’s nomination of Merrick Garland who was simply ignored by the Republican controlled Senate — Parker’s nomination was a precedent-setting for its time, and in many ways set the stage for the modern spectacle we witness Supreme Court nominees go through today.
In total, there have been 12 individuals formally rejected by the Senate for the Supreme Court in the history of this nation. After Parker was rejected, another nominee wasn’t withdrawn or rejected for another 38 years — starting with the failure of Lyndon Johnson to get Homer Thornberry on the Court and sitting associate justice, Abe Fortas confirmed as chief justice.
(4) Article II, §2 of the United States Constitution states the president, “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” A president has wide latitude over who they choose — they are no constitutional requirements (e.g. that they be lawyers) that limits a presidential selection.
(5) Article VI, §2 of the New York State Constitution states, “There shall be a commission on judicial nomination to evaluate the qualifications of candidates for appointment to the court of appeals and to prepare a written report and recommend to the governor those persons who by their character, temperament, professional aptitude and experience are well qualified to hold such judicial office.” Emphasis added.
In addition, the NYS Constitution goes through great lengths to make the Commission as nonpartisan as possible. For example, the Governor, Chief Justice of the Court of Appeals, Senate and Assembly majorities and minority parties each get selections; the appointments made by the Governor and Chief Justice cannot be all from the same political party; nor can members of the Commission cannot hold paid political or governmental office.
(6) In the federal system, the legislative branch plays a more critical check to the president’s unfettered power to pick whomever they want given there is no formal independent screening commission. In addition, New York has other limitations the federal courts do not. In New York, appointees serve a fixed term and face a mandatory retirement age of 70, while federal justices receive lifetime appointments with no mandatory retirement age.
(7) It also shows how management of a confirmation process plays a role. Hoover had extraordinary difficultly with Parker’s confirmation as well as the confirmation of Charles Hughes before Parker. Juxtapose Hoover to Franklin Roosevelt. Although interest group opposition gained a key victory in defeating Parker particularly on race, Franklin Roosevelt was able to get Hugo Black — a Democratic U.S. Senator from Alabama and former member of the Klu Klux Klan (KKK) — confirmed by a 63–16 bipartisan vote only seven years later.
(8) Both Parker and LaSalle were nominated, not because they were simply good jurists, but also because of politics. For Hoover, Parker — a Republican from North Carolina — a unicorn in the one-party Democratic south, was a way to strengthen his political support in the South, especially after winning the state of North Carolina against Al Smith in the 1928 presidential election. At a March 21, 1930 news conference, president Hoover first noted that the central reason for nominating a person to the Supreme Court is “fitness” he also noted that the judicial district — or region of the country that included North Carolina — hadn’t had a justice on the Supreme Court in 70 years. In fact, the president noted it was the longest of any other region. Given Hoover’s recent victory in North Carolina — a Democratic stronghold, it was good law and politics for Hoover.
Likewise, Governor Hochul, in part, nominated Judge LaSalle because it would make him the first Latino ever to be elevated to the Chief Judge of New York State’s highest court — also good electoral politics. But, in each case, although both were well-regarded, there was some potential political warning signs on the horizon prior to their respective nominations.
(9) Watson, Jr., Richard L. “The Defeat of Judge Parker: A Study in Pressure Groups and Politics” The Mississippi Valley Historical Review, Sep., 1963, Vol. 50, №2 (Sep., 1963), at pg 219.
(10) Ibid. at 222.
(11) See Report and Recommendations of the New York State Bar Association Committee on the New York State Constitution The Judiciary Article of the New York State Constitution — Opportunities to Restructure and Modernize the New York Courts (2017) at pg 41.
(12) See The Supreme Court of California Seventh Edition (Updated 2019): Containing the Internal Operating Practices and Procedures of the California Supreme Court at pg 2.
(13) The three-member commission consists of Chief Justice, Attorney General, and the most senior Presiding Justice of the Court of Appeal of the affected district. When a Supreme Court appointee is under consideration, the most senior presiding justice of the Courts of Appeal becomes the third member.
(14) Steve Zeidman, “Judicial Politics: Making the Case for Merit Selection” Albany Law Review, Vol. 68, pg. 716 (2005).
(15) Watson, Jr., Richard L. “The Defeat of Judge Parker: A Study in Pressure Groups and Politics” The Mississippi Valley Historical Review, Sep., 1963, Vol. 50, №2 (Sep., 1963), at pg 234.
