She chose to push it to the right on Thursday by nominating Hector LaSalle, an appellate judge and former prosecutor who has amassed a conservative record, particularly on defendant rights and police oversight, to the New York Court of Appeals.

Hochul’s choice builds on the legacy of Andrew Cuomo, the former Democratic governor who at one point had appointed all seven court members, locking in a right-leaning majority that is now likely to live on. 

“Judge LaSalle has a sterling reputation as a consensus-builder, and I know he can unite the court in service of justice,” Hochul said in a statement. Hochul added that LaSalle, whose nomination is subject to a Senate confirmation, will also be the state’s first Latino chief judge. 

In the lead-up to Hochul’s decision, a coalition of progressive New York organizations released an assessment calling the prospect of LaSalle’s nomination “unacceptable” and zeroing in on his rulings on cases that dealt with abortion, criminal justice, and labor. Last week, a group of 46 law professors released a joint letter raising concerns about LaSalle due to what they described as his “activist conservative jurisprudence” and his “cavalier attitude towards reproductive rights, hostility to organized labor, and a worrying insensitivity to due process.”

“He’s put his judicial philosophy out there, on paper, and it strikes me he is to the right of the majority of New Yorkers,” Steve Zeidman, a professor at CUNY law school who signed onto that letter, told Bolts on Thursday.

“This is someone who is less concerned with individual civil liberties, and more concerned with siding with the government and corporations,” Zeidman added. 

Jocelyn Simonson, a professor at Brooklyn Law School, told Bolts on Thursday that she also signed the letter because she finds LaSalle’s record on issues including reproductive rights and criminal procedure to be “abysmal.” 

If he is confirmed by the state’s Democratic-run Senate, LaSalle would fill a vacancy left by Chief Judge Janet DiFiore, who abruptly resigned this summer. On the court, DiFiore was part of a bloc of four judges—all appointed by Cuomo—who have consistently banded together around rulings that strengthened the hands of law enforcement, management over labor, landlords, and prosecutors in a slew of cases, the publication New York Focus reported in June. 

DiFiore’s departure broke that bloc’s control over the court, but LaSalle’s record suggests he would reconstitute a conservative-leaning majority.

The main case highlighted by the law professors’ letter last week was a ruling, joined by LaSalle in 2017, that partially protected crisis pregnancy centers, which are run by anti-abortion groups, from an investigation into possible fraud by the New York attorney general’s office.

Another LaSalle ruling that has gained scrutiny came in a 2015 case that authorized the corporation Cablevision to sue union officials for defamation despite state laws that are meant to protect labor leaders. Communication Workers of America released a statement on Wednesday, before LaSalle’s nomination, denouncing his “anti-union stance that directly contradicts the rights of New York’s workers to organize.”

LaSalle has also drawn criticism from criminal justice reform advocates for regularly voting against defendants who brought lawsuits challenging their arrest or conviction. 

Simonson, who teaches criminal law, pointed to a 3-2 ruling in a 2014 case known as People v. Corbin, in which LaSalle sided with the majority in holding that a defendant had waived his right to challenge the constitutionality of a warrantless search when he pled guilty. “Judge LaSalle has demonstrated a troubling lack of concern for the rights of people charged with crimes, especially when it comes to the ability of courts to review unconstitutional police conduct,” she said.

LaSalle would be the fourth former prosecutor on the seven-member court. He is, in fact, the third consecutive appointment to the court who is a former prosecutor, after Cuomo-appointee Madeline Singas and Hochul-appointee Shirley Troutman.

The court currently has no member who has worked as a defense attorney.

“When you look at the federal level, it’s such a contrast with what’s happening in New York,” said Zeidman, the law professor who is himself a former public defender, pointing to President Biden’s nomination of civil rights attorneys and public defenders to the federal bench. That push has largely not been mirrored in state courts, even in blue states like New York.

“The need for that professional diversity, it’s evident in how the [New York] Court of Appeals has operated for the last several years,” Zeidman said. “When you look at criminal cases, much has been written about the fact that the court of appeals is hearing fewer and fewer criminal cases, and when they are, the majority seems to have a knee-jerk reaction of siding with the prosecutors no matter how egregious the issues raised by the defense.”

Eliza Orlins, a public defender and activist in New York City, said she is concerned about the broad powers the chief justice exercises over the court system.

“We’ve made marginal progress in New York in terms of criminal justice issues, when prior we were one of the worst states in the country on discovery, on prosecuting children as adults, on so many things,” she told Bolts on Thursday. “That can all be put in jeopardy.”

Hochul’s choice was constrained to a list of seven names selected by the state’s Commission on Judicial Nomination, a body made up in large part of appointees of Cuomo and DiFiore that created controversy for excluding some prominent liberal jurists and candidates of color. 

Still, the list presented a clear ideological choice for Hochul. Three of the jurists on the list, including LaSalle, had a record closer to that of the court’s current conservative bloc. Three others were endorsed by the progressive coalition, The Court NY Deserves, as the likeliest to counterbalance the right-leaning bloc.

LaSalle was one of three judges on that list to receive the highest qualification ratings from both the New York State Bar Association and New York State Trial Lawyers Association; the other two who did were among the jurists who were championed by progressives. LaSalle has also received strong support from Hispanic and Latino lawyers’ bar associations in New York.

After Hochul’s decision, several progressive groups in that coalition, such as the Working Families Party, quickly called on the state Senate to reject LaSalle. 

“The folks we were hoping ultimately would be considered and appointed were people whose backgrounds and histories showed they were committed to uplifting the lives of marginalized folks,” said Tolu Lawal, the co-lead organizer of Unlock The Bar. “Hochul is on notice and the Senate is also on notice that people are paying attention, and we will be watching the votes and making decisions afterward.” 

Several left-leaning New York senators announced they would oppose LaSalle on Thursday. 

“It’s indefensible to ask for Black votes and then work to incarcerate us,” Jabari Brisport, who represents Brooklyn tweeted on Thursday. “No on LaSalle.” 

Samra Brouk, who represents the Rochester area, denounced LaSalle’s judicial record as “anti-woman, anti-worker, and anti-family.” Others who voiced opposition include Michelle Hinchey, Kristen Gonzalez, Robert Jackson, and Julia Salazar. 

Other Democratic senators with a progressive reputation had more vague reactions to LaSalle’s nomination on Thursday. Brad Hoylman, the chair of the chamber’s Judiciary Committee, told New York Focus that he is undecided on LaSalle. Zellnor Myrie, who released a statement last month calling on the governor “to prioritize civil rights and defense experience when selecting our next top jurist,” also tweeted that he was undecided on Thursday.  

Nominations to state court typically don’t draw much attention or controversy. “Traditionally, the senate has been a rubber-stamp,” Zeidman said.

In 2021 progressives tried to organize against Cuomo’s choice to send Singas, who at the time was the district attorney of Nassau County, to the high court. But despite some recorded opposition in the senate, Singas was easily confirmed.

She went on to solidify what became the court’s conservative bloc. At least one powerful New York senator, Michael Gianaris, told Bolts and New York Focus in July that he regretted his support for Singas. On Thursday, his office pointed Bolts toward a statement he issued in September that called for “diverse legal experience.” Another New York senator who supported Singas’s nomination, Andrew Gounardes, said in July that he did not regret his vote because “no one could foresee just how important state government would be;” on Thursday, he released a statement on Thursday saying that he was “deeply concerned” by LaSalle’s record and that New York courts should be a “bulwark” against the conservative federal judiciary. 

Critics of LaSalle are intent on at least making the case this year that state institutions deserve a bright spotlight. 

“In light of the current composition of the Supreme Court and other federal courts, our state courts are more important than ever as interpreters of our laws and our rights,” Simonson said. Zeidman concurs. “I’m optimistic that there’s going to be an awful lot of attention to the confirmation process this go-around.”

Alex Burness contributed reporting.

The article was updated on Friday morning to reflect additional statements from New York senators.

The post Kathy Hochul Pushes New York’s Highest Court to the Right appeared first on Bolts.

The results remain uncertain since the union and Amazon have contested 416 ballots, which is more than three times the margin. But the RWDSU has also asked the National Labor Relations Board (NLRB) to set aside the election because of Amazon’s flagrantly illegal conduct, saying the company retaliated against pro-union workers and “created an atmosphere of confusion, coercion and/or fear of reprisals and thus interfered with the employees’ freedom of choice.” 

This election was already a redo of a vote that took place in 2021, when Amazon faced similar complaints. It plastered bathroom stalls with anti-union propaganda, paid consultants to spread anti-union messages on the warehouse floor, and forced workers to sit through mandatory sessions that badmouthed the union known as “captive audience” meetings.

Amazon also fought the use of mail ballots during height of the pandemic due to the “party fraud and coercion that is characteristic of mail-ballot elections,” mirroring former President Donald Trump’s false claims that absentee voting opens the door to widespread voter fraud just months after the 2020 presidential election. After it lost its effort to ban mail ballots, it installed a mailbox to deposit ballots on the warehouse grounds in view of surveillance cameras, and even got the timing of nearby traffic lights changed to make it harder for union organizers to approach workers in their cars.

RWDSU President Stuart Appelbaum wonders how people would respond if an election for public office was conducted the way unionization elections are run, with democratic norms thrown out the window. 

“Imagine if we did this in political elections,” he told Bolts. “You hold the election in one candidate’s headquarters. You force people to vote at these meetings for one candidate, and the facility is plastered with the propaganda of just one candidate. Nobody would think that was a fair election process.”

There is renewed interest for voting rights in progressive circles today, spurring momentum for strengthening access to the ballot in Democratic-run states. But that energy has largely stopped at the doors of the workplace. Labor organizers must confront a playing field with little fairness and a general indifference toward respecting democratic procedures, let alone giving workers more direct control. 

In union elections, democratic norms—from the basic standards of free and open elections to free speech protections—are routinely cast aside. Many tactics that violate them are legal, and when companies breach labor law they are often only asked to post a notice with the promise to forswear lawbreaking in the future. 

Gordon Lafer, a labor scholar, painted an alarming picture in a November 2021 report published by the Labor Education & Research Center at the University of Oregon, in which he compared the democratic standards in federal and NLRB elections.

“When most people hear that there is such a thing as union ‘elections,’ they assume these must be conducted in accord with the same democratic standards that Americans apply to all other elections,” Lafer wrote. “Unfortunately, nothing could be further from the truth…. Union elections conducted under the National Labor Relations Act fail to uphold the most basic standards of American democracy.” 

In a federal election, it would be illegal (unthinkable, even) for one party to force voters to attend partisan meetings. But U.S. employers hold compulsory “captive audience” meetings, which workers are forced to attend to hear speeches denigrating unions that are delivered by union avoidance consultants. 

“We were forced into what they called ‘union education’ meetings,” Bessemer worker Jennifer Bates testified before the Senate Budget Committee last March . “We had no choice but to attend them. They would last for as much as an hour and we’d have to go sometimes several times a week. The company would just hammer on different reasons why the union was bad. And we had to listen. If someone spoke up and disagreed with what the company was saying they would shut the meeting down and told people to go back to work. Then follow up with one-on-one meetings on the floor.”

In a federal election, it would also be illegal for different parties to have unequal access to voter lists, Lafer notes. But in a union election, the employer has full access to workers’ contact information from the date of hire, giving them ample opportunity to campaign against the union even before the campaign has gone public. To obtain workers’ information, unions must first gather signatures for a 30 percent showing of interest to petition the federal labor board for a union election. Unions must gather these signatures without any knowledge of how many workers are employed at the company or their contact information. 

An employer can also gerrymander the voting district, or the bargaining unit, with workers who are anti-union or exclude those workers who are pro-union. In the first union election, Amazon quadrupled the size of the bargaining unit from 1,500 to 5,800 workers. In Staten Island, the company inflated the bargaining unit size to as many as 8,300 workers. Employers also routinely threaten employees’ livelihood during a union election; the RWDSU alleges that Amazon threatened to shut down the Bessemer plant if the union won. 

Consultants abound to guide employers through this arsenal of antidemocratic weapons. Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations, has found that three-quarters of large employers hire anti-union consultants, spending hundreds of millions a year on that industry.

As promotional union-busting material by the law firm Jackson Lewis boasts, “winning an NLRB election undoubtedly is an achievement; a greater achievement is not having one at all.” 

Amazon spent $4.3 million on anti-union consultants to defeat union efforts during 2021. 

Even when legal protections exist, they are routinely violated. Lawyers can drag things out for years, and penalties are too low to deter employers. A 2019 report by the Economic Policy Institute found that nearly 20 percent of employers were charged with illegally firing pro-union employees, and over 40 percent with violating workers’ legal rights. 

Bronfenbrenner says allegations of labor law violations occur throughout various phases of a union campaign, also including interrogation, firings, surveillance, bribes, changes to benefits, harassment, and discrimination.

“I’ve been studying this for thirty years,” she told Bolts. “And what employers do hasn’t changed. Every single management training manual has in it ‘tips’ in huge capital letters where they say what not to do, which is of course what to do: threats, interrogation, promises, coercion, harassment, and surveillance.” 

Bronfenbrenner says she wonders about “all the campaigns that don’t get off the ground and all unfair labor law practices we don’t even find out about because workers never got in touch with a union.”

Proposals to strengthen workers’ legal rights, which have considerably eroded since the National Labor Relations Act passed in 1935, have stalled repeatedly, including when the Democratic Party has run the federal government. The Protecting the Right to Organize (PRO) Act, which would create more favorable conditions for organizing and make mandatory captive audience meetings illegal, was a legislative priority for unions during the Biden administration, and it passed the U.S House in March 2021, but it lacks the votes in the U.S. Senate given the continued requirements that legislation earn a supermajority.

Jennifer Abruzzo, who has the power to set labor guidelines as the general counsel of the NLRB appointed by President Biden, has set her sights on strengthening unionization procedures without congressional action by reviving a rule known as Joy Silk. The rule stipulates that a company deemed to have engaged in unfair labor practices for the purposes of blocking a union’s organizing campaign can be ordered to recognize and bargain with that union if most workers had signed cards to affiliate and requested recognition from the company.

But for Chris Brooks, field director for the NewsGuild of New York, the nation’s largest journalism union, the fact that unions must fight to be recognized in the first place already distorts workers’ power. Bringing democracy into the workplace, he says, would mean recognizing that “they should all have unions” and treating that as just a starting point.

He is struck by the fundamental asymmetry that the country tolerates between employer and employee. Our basic conceptions of what it means to have fair elections—candidates enjoy a similar footing from which they compete for votes, which makes the results legitimate—become irrelevant in a unionization election where one of the parties is fighting for its very existence. 

“The current system is not akin to living in a democracy and choosing between two competing political parties,” Brooks told Bolts. “It is more akin to living under a fascist dictatorship, where the employer is a private tyranny that routinely rigs elections to ensure that it will never face any kind of official and lawful opposition in the workplace.”

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