[music]

Brian Lehrer: Brian Lehrer on WNYC. You probably know by now about the fight over Governor Hochul's nomination of Hector LaSalle for New York State Chief Judge. This will be decided in the state senate. Is he too conservative for New York in 2023? Why would Governor Hochul of all people nominate somebody who's being labeled as too conservative by a good number of state senators? Democratic state senators. Controversy has been brewing since Hochul first announced her pick of LaSalle about three weeks ago based on past LaSalle rulings with implications for abortion rights and labor rights, and criminal justice.

Whether LaSalle's nomination is approved or fails in the Senate will be historic. LaSalle will either be the first Puerto Rican Chief Judge in New York's history, or if the nomination fails, it'll be the first time the State Senate has rejected a Chief Judge nominee. Over a dozen Democratic state senators opposed the nomination already due to concerns over LaSalle's track record on those abortion union and criminal justice cases outside the Senate. Many Democrats, union leaders and other groups also opposed the nomination and are mobilizing.

Just yesterday, leaders from three unions rallied outside the Capitol in Albany to express their displeasure with Hochul's continued support for LaSalle's nomination. That rally reported by City & State, the news organization. Last week, deputy majority leader and state senator for the 12th District, Michael Gianaris, joined us here on the show to explain his opposition as a member of the Senate Democratic leadership and what democratic state senators want out of the next Chief Judge.

Now we're going to get an opposing point of view with Melissa Mark-Viverito, you know that name. She's a former speaker of the New York City Council. She's now president of what's called the Hamilton Campaign Network, and she's a member of a group called Latinos for LaSalle. Melissa Mark-Viverito, no slouch in the progressive department herself. An interesting conversation is engaged among New York Democrats. Ms. Mark-Viverito, always good to have you on the show. Welcome back to WNYC.

Melissa Mark-Viverito: Brian, thank you so much for the invitation.

Brian Lehrer: To start off, tell us why you support Hector LaSalle's nomination for Chief Judge and why you're part of Latinos for LaSalle.

Mark-Viverito: Well, Judge Hector LaSalle is not who he is purported to be by the opposition. Let's state that clearly, I, in no way believe he is a conservative. I believe he is a thoughtful jurist and trying to always stay above the fray of politics. He has gone through different levels. His experience is vast, having gone through different levels of the court system here in New York State. His qualifications, his thoughtfulness, I think when I looked at this initially, I did hear some of the criticisms. I started doing my own research.

I started also calling people that I greatly respect and whose voices should weigh and should matter in this conversation, like Chief Justice, Judge Lippman, for instance, who has walked in these very shoes, who is the most progressive Chief Justice that the state of New York has had when he says that he's being mischaracterized and maligned in terms of Hector LaSalle, and that he believes he'd be an excellent chief justice.

When you think of Judge Rolando Acosta, who's also a progressive judge in the system, and who also supports the nomination and confirmation of LaSalle. When you have Brooklyn District Attorney, Eric Gonzalez, another progressive who's very respected and says he has an incredibly strong record when it comes to overturning wrongful convictions, and is pushing back against prosecutorial misconduct, and has weighed heavily saying that he supports his nomination and confirmation, and many, many others.

Those are people that matter to me. Those are people who have experience and who I can ask for their thoughtfulness on this matter. Plus, understanding that the particular cases, the opponents are hanging their head on have been seriously misconstrued. I will not stand in silence as a historic nomination of someone who is highly qualified, is being thrown under the bus to make some a political point, and so that is why I have joined Latinos for LaSalle, and I strongly support his nomination and his confirmation.

Brian Lehrer: Well, let's talk about some of these particular cases that have landed him in the crosshairs politically. It's a handful of cases that have generated most of the publicity and in one involving a so-called crisis pregnancy center, an anti-abortion institution as women going there may or may not realize, here is Senator Gianaris on the show last week on that case.

Senator Gianaris: My understanding is that he joined a decision that restricted the then Attorney General's ability to properly investigate that pro-life center, and restricted the ability to bring proper enforcement for it operating fraudulently. I believe the Attorney General's office has indicated that it essentially put a stop to their investigation because they weren't able to obtain the information that they were seeking.

Brian Lehrer: That case was Evergreen Association versus Schneiderman, the then New York State Attorney General. What was your view of that ruling? You hear how Senator Gianaris characterized it.

Mark-Viverito: It's an inaccurate representation. This is a First Amendment issue. I think that I would want us to step back a minute and think if the tables were reversed in this situation. We were thinking of a pro reproductive rights group. What Evergreen was doing, the subpoena that was put forward, 8 out of the 10 items that were requested in that subpoena were honored. What specifically the dissent or the opinion that he, Hector LaSalle formed part of, was speaking specifically to issues of gaining access to donor lists, et cetera.

When you talk about the issue of finding out whether or not these crisis prevention centers, of which I've been very vocally against in my term as speaker and also as a council member, obviously, I have no luck for them. I think they're terrible. With regards to whether or not they were purporting or presenting themselves as providing some medical care, that was at the crux and the heart of the request of the subpoena, that information was made readily available.

This is, again, about access to donor lists and information that was a particular interest to the subpoena that was questioned. That was the way, and again, I've spoken to many, many people that specifically is not seen as an anti-reproductive health case, is seen as a First Amendment case.

Brian Lehrer: All right, so that's your view on that one. The other big case he was involved in getting the most negative attention, involved union leaders rights to speak out against management, First Amendment case, you might say it was Cable Vision versus Communications Workers of America. Senator Gianaris, again on this show, framing it in his words.

Senator Gianaris: In the other case, which is why you see such a vast array of important organized labor unions opposing this nomination, is that there was a union action where one of the union leaders commented on the employer and the employer was allowed to sue that person for defamation, which creates a tremendous chilling effect on labor actions in the workplace. You have seen a very significant opposition coming from the likes of the communication workers, 32BJ, the AFL-CIO has expressed concern about this nomination.

Brian Lehrer: What's your position on that? Senator Gianaris frames that one as, "Wait, what he ruled in favor of management being able to sue a union leader for making remarks about management?"

Mark-Viverito: Let me, before I answer that specific case, I want you to-- something that you said earlier. We're talking about over 5,000 cases that Judge LaSalle has been a part of in one way or another, 5,000. We are specifically talking about one or two cases. This is, to me, a greater issue of depoliticizing this process. That is not what's happening here. When we make the argument that Trump politicized the process, when McConnell politicized the process in holding me Garland's nomination, when we talk about politicizing the process.

This is, to me, what this is about. We have to depoliticize this process and be thoughtful in the way that we look at it. We're going to criticize other administrations for being political in the way they approach the courts, then we can't turn around on the other side and expect the same, and not be held accountable to that. There's inconsistency in the arguments that are being prevented. [crosstalk]

Brian Lehrer: Let me follow up on that. Oh, for a second, just for that as a concept. It's inevitably political in a certain respect these days when they're judicial nominations. You want somebody who upholds certain judicial values, which may not be the same as most Republicans want. It's political in that sense. I think your democratic colleagues in the State Senate, those who've come out against Judge LaSalle would say that's what they're trying to uphold here.

Mark-Viverito: I do not agree with that because there is inconsistency in these arguments. Why is the first person of color highly qualified? Again, I do not subscribe to any of the opposition's claims that LaSalle is conservative. His record does not prove that. I want to make that clear up from the onset, but taking that further, when we talk about the first female governor presenting the first candidate of color, and he is getting this vitriolic response where many of those who are opposing, it says he shouldn't even have an opportunity to be presented in a hearing. We shouldn't even have a hearing, is the claim I've heard from some.

Why is this nomination being held to such a different standard than prior nominations and confirmations in the past of conservative nominees who were confirmed unanimously in some cases, by the same, very same people who are now saying that LaSalle's nomination is unacceptable. That is an inconsistency. You're not applying the same argument in this case as you did to others. That, to me, the issue of inconsistency is really problematic. I pushed back. He is qualified. He is a thoughtful jurist as indicated by Brooklyn, VA by Judge Lippman, by Rolando Acosta, by all the bar associations across the state, by a broad array of individuals.

That to me means a lot. I'm approaching this from the historic nature of a qualified candidate, of a Latino candidate, a Puerto Rican candidate, the first candidate of color. The implications that pushing him to the side and throwing him under the bus to try to cleanse the pallet of the Senate because of prior mistakes. Now they all want to step back and say, "Well, the courts to conservative," when in fact they've been a part of that. This to me, again, I go back to the inconsistency.

Going back to the case. I don't want to let leave that unanswered. That is an issue of there was a distinction made between the role that the union leaders played. They were protected in the role as a union leader in saying what they were saying, versus the management, and your role as an individual outside of your capacity of your role, official role as a labor leader. People sometimes don't want to parse those distinctions. Again, I think it's indicative of the thoughtfulness by which LaSalle approaches these cases.

For me, having been a historic candidate in and of myself in terms of my speakership, I know how I was maligned. I know how much criticism and attacks I personally got. May have not been against me personally. May have been a greater agenda to try to cast me aside because I was too progressive at that time to be speaker in the eyes of some. We're not going to stand by. I--

Brian Lehrer: You didn't get it from the left.

Mark-Viverito: I did not get it from the left. At the same time, the arguments here are that one or two cases of which I've indicated, and others have clearly indicated, were misconstrued and misrepresented. I do not believe we should be talking about casting a wide net and attacking the character of this individual based on those one or two opinions. All we have to do is go back to Judge Sonia Sotomayor or others, in terms of the attacks that were received by misinterpreting positions that she held or statements that she made.

This historically, for me, is significant. Again, he is a qualified, and it's not just about him being Latino, but he is making history. I know the importance of what representation means to our community. I believe that is one of the reasons [unintelligible 00:14:38] was also supported so strongly by some. This is initial representation does matter as long as it's the right and qualified candidate. In this case, Judge Hector LaSalle is the qualified and right candidate.

Brian Lehrer: Listeners, we can take a couple of phone calls for Melissa Mark-Viverito, the former New York City Council speaker, here today as a member of Latinos for LaSalle, the Judicial nominee from Governor Hochul to be in fact the Chief judge of the New York State Court of Appeals. A lot of power there and individual criminal cases, as well as questions that are more constitutional. Any lawyers listening who've practiced before Judge LaSalle or anybody else with professional contact? 212-433-- WNYC 212-433-9692.

Listeners, I know for many of you, such a confounding division between progressive Democrats in New York State over somebody you've never heard of before until the other day. If you have a question for Melissa Mark-Viverito, she's here supporting the nomination. We had Senator Gianaris here the other day opposing it. 212-433-9692. There are, of course, Latinx politicians, Democrats on either side of this question. State Senator Kristin Gonzalez and Gustavo Rivera publicly opposing his nomination. To what degree, if any, are you suggesting that there is racism in this opposition?

Mark-Viverito: I'm not claiming that at all. The process is the process, but we do have to question why is it that this particular individual is being held to such a different standard when in other cases, historically, with members in the Senate that have been part of those processes, why is this candidate being treated and the process being asked to be treated so differently? There is a need to have him in a court here. I would like to say I've been hearing and reading that there is going to be some a hearing. A date hasn't been put, don't see it, the clock is ticking. We're watching that.

This is really, really important to get on the calendar and that there is an opportunity to have and engage in our conversation. I do hope that all those who are expressing opposition have had an opportunity to meet, to speak with the judge directly and to get a vision of what it is that he sees as being Chief Justice. Chief Justice also has to do with the efficiencies of our court system and how they function. I know that I had particular issues with the prior Chief Justice DiFiore. I went head-to-head with her on concerns of the lack of protocol within our courts to prevent ICE from roaming freely in our court system. This was in 2017 when Trump had gotten elected.

There is an importance of that role, and I understand it. I am not a lawyer, but I understand that based on my role in the past and what I have asked the courts to do, and my fight for criminal justice reform, and all the work that I had done alongside Judge Lippman, in some cases, alongside Brooklyn District Attorney Eric Gonzalez, which is why I understand the importance of this position when it comes to equal justice. Needing somebody there who understands that. For me, this is very important. This is personal, this is historic. We can't be holding him to a different bar than others have been.

Brian Lehrer: One thing that you say is indisputably true, and that is that these past judges on the court of appeals who have relatively conservative records, these are not Scalia Alito conservative records, but in the context of New York State, they are conservative records, when they were appointed by Governor Cuomo, there was not this degree of opposition. Now that Cuomo is out of power, and it seems to me, when they see a politically weaker governor than they had before, they're trying to play makeup catch up a little bit by opposing this judge who rightly or not, they see as in a similar mound.

Mark-Viverito: I'll leave it at that.

Brian Lehrer: This is WNYC FM, HDNAM, New York, WNJT FM 88.1, Trenton WNJP, 88.5, Sussex, WNJY 89.3, Netcom, and WNJO 90.3 Toms River. We are New York and New Jersey Public Radio and live streaming@wnyc.org. A few more minutes, with former New York City Council speaker, Melissa Mark-Viverito, now here as a member of Latinos for LaSalle, supporting Governor Hochul's nominee for Chief Judge of the New York State Court of Appeals.

I want to ask you, and we'll take a couple of phone calls in a minute. Our lines have filled up with people who have now gotten engaged in this issue, even though most New Yorkers never heard of Judge LaSalle until the other day when he was nominated. One of the reasons that a number of senators oppose the nomination is because he doesn't seem to fulfill a particular part of the vision they have for the future of a progressive court in the 2020s.

In fact, we had a segmented way back, I think it was last summer, even before it was known that this vacancy would exist, with guests who were pointing out that there were prosecutors who became judges on the Court of Appeals, but not a former defense attorney, or I should say, a public defender. They wanted the next opening to go to a public defender. Something that in theory, I think you would support.

Here's LaSalle who is yet another one who has been a prosecutor in his background. Does that bother you at all? Would you like to see a public defender appointed to the Court of Appeals with respect to criminal justice and individual cases of a lot of, let's be honest, Black and Latino, young New Yorkers who come before these judges?

Mark-Viverito: Look, of course, but if that's going to be your only line in the sand, that's not the way I would operate. I want to do my due diligence. I want to learn about the record of the individual because there's always reconsiderations that one makes. That's how I led as a council member and as a speaker. I was always, yes, you have initial feelings and sentiment on something, but you know what, sometimes through those conversations, you can be convinced to either be a little bit flexible, re-adapt your position, adjust your position. I try to not be, in some cases.

There're always going to be those issues for some that are like that line in the sand that you don't want to cross, understood. For the most part, we also have to be open to understanding that our initial sentiment at the beginning, maybe it wasn't the right one, maybe it was further information and analysis, you can adjust your point of view. I believe in that wholeheartedly. I'm a passionate person, people who've known my years in office know very strongly that I have strong opinions, but I'm also very thoughtful in the way that I lead. I like to get information, talk to people, which is the way I approached LaSalle.

I saw some other criticism and I led into it and I said, "Oh, wow, this is going to be a problem." Then I decided to do my due diligence on my own, and I found out more about the judge. I've had the opportunity to speak to him. I value the opinion of Chief Judge Lippman. I value the opinion of Rolando Acosta, Brooklyn DA, Gonzalez, and many others.

If people go to the website, Latinos for LaSalle, you will see the exhaustive list of supporters, how broad that support is, the statements that have been made, the opinion pieces that have been put out by people that I respect greatly. I've done that diligence and I've readjusted my initial reaction. I think that that's very important when you lead and when you're in a position that you have a platform. Leadership is also about being able to say, "You know what? Maybe I made a mistake, maybe I overreacted, or maybe saying no, the more reason to put my feet in the ground, right?"

In this case, I've readjusted and I am strongly, strongly in support of this nomination because of all that it means and the significance it has. Representation does matter, visibility and positions of power matter. Latinos have a great candidate in Hector LaSalle, and I am looking forward to him getting confirmed.

Brian Lehrer: Let me characterize a few different tweets that we're getting from listeners and aggregate them in into one question. Basically, some people heard you say, "These few cases that are being singled out by the opponents can't stand for a whole body of thousands of decisions that he's made over time." A few people on Twitter are asking you to cite a case or two of his that explicitly support progressive values.

Mark-Viverito: Well, I think that, and again, I indicated that I'm focused right now on speaking to the issues that you've brought up, but in looking at all of the analysis that has been done in particular, and we have it again on the website where people can look at them. When you have the New York Court Watcher that did a three-part series looking specifically at the cases in which he was criticized, but then also looking specifically at cases which are not being discussed, and that definitely are ones that people should look at.

Brooklyn District Attorney, Eric Gonzalez, indicates in his press advisory and the statement that he makes with regards to specific cases around wrongful convictions, and overturning wrongful convictions, and also to calling out prosecutorial misconduct in his case history. That is the reason why he supports him because we all know the incredible work that Brooklyn DA has done in those areas, those are issues that are priority and matter to him.

When someone of that stature to me, who is a lawyer, who's a district attorney, is saying that I've read and studied his body of work, and when it comes to prosecutorial misconduct, he has stood up and so he has unlawful convictions, and his casework demonstrates that. You know what? I'm not going to dismiss that. When the Attorney General Tish James says that she's supportive of this nomination, there are people that have that experience that I also value their opinion.

In this Court Watcher three-part series, he does talk about specific cases that people have not focused on. People want to go to the website again and take a look at it, latinosforlasalle.com, you'll see that. It's the first article that is linked on our website. There's one here, Massullo v City of Mount Vernon is mentioned, People v Buyund is mentioned. There's a couple here that are mentioned that when you read it you can get a little bit more sense of what his thinking his philosophy is.

Brian Lehrer: One more listener question, then we're out of time. Wesley and Didymus Park you're on WNYC. Hi, Wesley.

Wesley: Thanks for taking my call. My question is around, just like from what I'm hearing about the opposition right now is mostly around the historic nature of the nomination. My question is, aren't there other progressive Latino Puerto Rican judges that we could put up there on there that doesn't happen the same-- Yes.

Brian Lehrer: You want to answer that?

Mark-Viverito: I'm sorry. Repeat that. Repeat that.

Brian Lehrer: Oh, he asked, I'm paraphrasing now, aren't there other Puerto Rican or other Latinx judges who the governor could put out there who wouldn't be divisive in this way?

Mark-Viverito: Well, this is again, based on reforms that happened in the 1970s. There is a panel that interviews candidates and presents a list to the governor, and that is what she needs to select from. It's not like just her randomly selecting anybody and presenting them. It has to be someone who is specifically mentioned on that list. My understanding, maybe if I'm wrong, I would definitely like somebody to clarify, is that LaSalle is the only Latino on that list.

Brian Lehrer: All right. We've had Senator Gianaris representing the opposition. Now we've had Melissa Mark-Viverito in support. Senator Gianaris did seem to promise on this show the other day that he would at least get a hearing. There will be a confirmation hearing. They won't just scuttle this without going into hearings in committee. The kind of thing around the country we would see for a Supreme Court nominee. Are you at least confident that they'll go that far and let this play out publicly, in his own words?

Mark-Viverito: Well, it's what day today and we still don't have a date. I'll wait for that official announcement and the actual date to be put on the calendar, and we can move forward from there.

Brian Lehrer: Thank you for joining us. We always appreciate when you come on.

Mark-Viverito: Thank you so much, Brian. Okay.

Copyright © 2023 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.