The number of Democratic state senators who say they will not vote to confirm Gov. Kathy Hochul’s Court of Appeals chief judge nominee appears to be growing.

As of Friday evening, those Democrats include: Sen. Cordell Cleare; Sen. Rachel May; Sen. Michelle Hinchey; Sen. Robert Jackson; Sen. Julia Salazar; Sen. Jabari Brisport; Sen. Gustavo Rivera; Sen. Samara Brouk; Senator-elect Lea Webb; and Senator-elect Kristen Gonzalez.

At issue is Appellate Court Justice Hector LaSalle’s track record as both a former prosecutor and as the presiding justice of the 2nd Department.  

If 11 Democrats oppose the nomination, LaSalle’s name may never reach the floor for a vote.  

But according to Rob Rosborough, partner at the firm Whiteman Osterman and Hanna, LaSalle’s record doesn’t quite match lawmakers’ rhetoric. 

“They claim that Hector LaSalle’s record at the Appellate Division is anti-abortion and anti-union. Now, they only cite two cases, and neither of which he wrote,” Rosborough said. “It’s a weak starting point in my opinion.”

The cases are Matter of Evergreen Assn., Inc. v Schneiderman (153 AD3d 87 [2d Dept 2017) and Cablevision Sys. Corp. v Communications Workers of Am. Dist. 1 (131 AD3d 1082 [2d Dept 2015]).

The first case, (Evergreen) in which the attorney general was investigating a crisis pregnancy center, dealt only tangentially with abortion. 

According to Rosborough, the attorney general issued a subpoena that the 2nd Department thought went further than it should have.

“Basically, what the 2nd Department held, was that the subpoena was lawfully issued,” Rosborough said. “The attorney general had every right to investigate the center to see whether it was conducting the illegal practice of medicine. But what the AG didn’t have the right to do and would have violated the First Amendment, freedom of speech and freedom of association, is (provide) the donor lists and (information on) who was funding that center.”

The charge of being “anti-union” stems from the Cablevision case, which is much more legally complicated. Rosborough wrote about the case here.

No nominee to the New York State Court of Appeals has ever been voted down by the state Senate.