The saga over the lost nomination of Justice Hector LaSalle continues. 

In January, the New York state Senate Judiciary Committee rejected Gov. Kathy Hochul’s nomination to lead the state’s highest court.

This coming Friday, Judge Thomas Whelan of Suffolk County Supreme Court will hear arguments in a case brought by Senate Republicans to have LaSalle’s nomination voted on by the entire state Senate.

The Republicans are looking for a declaratory judgement.

“Really, it’s just a question of law,” state Sen. Anthony Palumbo, R-Suffolk, told Capital Tonight. “The constitution trumps everything.”

LaSalle’s nomination was voted down by a 10-9 vote in the Judiciary Committee. But according to Palumbo, the Judiciary Committee’s role is limited regarding judicial nominations.

“I think the state constitution is quite clear that this requires a full Senate vote,” he explained.

The section of the Judiciary Article that deals with appointment, 2(e), says that the "governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission..."

When asked about that language, Palumbo pointed to the words “the senate," which he states, “is not the committee, or a committee.”

However, the constitution gives each house the power to determine its own rules of proceeding.

Palumbo also argues against the Senate Democrats’ decision to stack the Judiciary Committee with what many observers viewed as anti-LaSalle senators.

“They added three Democrats, one Republican. Under the Senate rules, speaking of the Senate rules, they specifically mandate that the committee represent the same proportion as the overall body. The body is 2-1.  They added 3-1,” Palumbo said.

A spokesman for the Senate Democrats takes issue with Palumbo’s characterization. 

“The Senator is being very disingenuous and showing a tremendous lack of understanding of the rules of the Senate. The committee makeup and the partisan representation is the exact same as it was under Republicans,” Mike Murphy stated in an email to Capital Tonight.

It was thought that Palumbo and the Republicans may be relying on section 2(f) of the Judiciary Article to bolster their legal argument. This is a section that deals with vacancies occurring when the Legislature is not in session. In that situation, it allows the governor to fill by interim appointment, which shall continue until the Senate passes on the governor's selection. 

That section discusses the Senate either "confirm[ing]" or "reject[ing]" an appointment, and is only applicable to situations where there is a vacancy when the Senate is not in session.

While Palumbo stated that he looked at that section of law, he argues that the Legislature is never officially out of session, so it made little sense.

“We are actually always in session even when we’re…out of session in the summertime. Someone still comes every three days and gavels in and gavels out, so I don’t think that’s applicable here,” Palumbo said. “But the bottom line is, if the Judiciary Committee chooses not to get their nominee, the one they think is best, instead of the entire Senate, this could go on forever and we are mandated to have seven judges on the Court of Appeals. We have six. We could get down the point where we don’t even have a quorum.”

“We just want an answer, up or down. However, the court rules, it rules and we live with it,” Palumbo said. 

While Gov. Kathy Hochul said the GOP lawsuit was a surprise to her, she's not joining the lawsuit at this time.

"It was unexpected to see them file a lawsuit. What I have said all along, I still remain strongly behind, the premise that the constitution of the state of New York requires the senate consider a nomination from the governor so however that gets to the floor, the Senate can still do that on their own, they have that option and we hope this gets resolved soon,” Hochul said.