Rule the Senate out of order: Justice Whelan must side with the state Constitution

Sitting beneath the motto of “IN GOD WE TRUST” in all capital letters in his Riverhead courtroom, Suffolk County state Supreme Court Justice Thomas F. Whelan was ready to go, he told the lawyers before him yesterday afternoon.

He had read all the briefs and the pertinent cases for state Sen. Anthony Palumbo’s lawsuit against Majority Leader Andrea Stewart-Cousins for her clearly wrong insistence that the chamber doesn’t need to have a floor vote on nominations to the Court of Appeals, the highest court in the state.

Whelan batted away the objections of Andy Celli, the skilled lawyer for Stewart-Cousins, that the matter was moot because Stewart-Cousins had allowed a roll call on Gov. Hochul’s nomination of Hector LaSalle to be chief judge of New York State 48 hours before the court hearing.

That LaSalle was defeated doesn’t end the matter at all because now there is a vacancy that Hochul and the Senate must fill. And Stewart-Cousins and other Senate Democrats continue to claim — during Senate debate on LaSalle and in their court filings — that their rules control and they need not take a formal vote.

Whelan also noted the great import of this live controversy, as the state needs a chief judge, the Court of Appeals needs a tie-breaker and the entire judicial branch needs a leader.

Palumbo’s attorney, the equally skilled James Catterson, said correctly that the people who wrote that part of the Constitution, about Court of Appeals nominees, were clear as crystal that the full Senate must vote. He cited the Joint Legislative Committee on Court Reorganization. It says, “the Senate will receive a report from its Judiciary Committee, which will have held public hearings, with the nominee asked to appear for questioning by Committee members and with interested citizens invited to be heard. The Senate will receive and debate the Committee’s recommendations, then vote.”

There are no facts in dispute here. Just the interpretation of the Constitution. Whelan should lay down the law and the Senate must obey.