The New Jersey Supreme Court today heard arguments on a Tea Party-led campaign to recall Democratic Sen. Robert Menendez — an effort that has little chance of ultimate legal success, but sure provides for a fun civics lesson.
Menendez attorney Marc Elias argued that this case is very simple and straightforward — that federal recalls are not allowed under the Constitution: “The committee has asked this court to ignore the Constitution’s plain text, a century of US Supreme Court precedent, the overwhelming consensus of legal scholars and executive branch officials around the country, and the opinion of the attorney general of this state.”
The recall committee was represented by Andrew Schlafly, a conservative activist, son of Phyllis Schlafly, and founder of the right-wing Conservapedia website. Interestingly, Schlafly took a broad and expansive –Â dare we say, activist — view of the Constitution allowing for rights that are not expressly enumerated, which he said would include the ability to recall a Senator. “There are many rights of the people that are not in the Constitution,” Schlafly said. “There’s no freedom of association in the U.S. Constitution — it’s a very important right.”
In an amusing turn, Schlafly cited a letter that George Washington wrote to a nephew, in which Washington seemed to promote the idea of recalls. Justice Barry Albin replied: “The only thing you can find is some handwritten note from Washington and you want to disregard the Federalist Papers?”
There is a widespread consensus among political experts that recalls of members of Congress are not permitted under the federal Constitution — that is, the United States Constitution and only that Constitution establishes a Senator’s term as six years, absent death, resignation or expulsion. The lingering legal question exists because no court has ever actually had to issue a ruling on the subject, which is not mentioned in the Constitution, because no recall effort was able to sufficiently get off the ground.
A lower court ruled in March that the recall campaign could circulate petitions, declining to override the state constitution’s recall provision that does allow for the recall of members of Congress, despite the legally questionable nature of that very provision. The court did not affirmatively declare a recall to be constitutional — even noting the various arguments against it — but was essentially kicking the issue up to the next level, by declaring that the matter did not have to be decided until the recallers could gather signatures.
However, this is something of a Catch 22 – the recallers have reached the point of litigating the constitutionality before they can even gather signatures.
The best possible outcome for the Tea Party folks would be if the state Supreme Court does what the lower court did — decline to rule on the constitutionality of a recall, and instead rule that they can collect the signatures, which could potentially lead to a testing of a recall’s legality if they were to meet the threshold.
But even this would present two difficulties for the recallers: Chances are, the Menendez folks would then appeal to the U.S. Supreme Court, seeking a definitive ruling. But even if they could circulate their petitions, they would then have to gather 1.3 million signatures — nearly as many people as the 1.6 million who voted for John McCain in New Jersey for the high-turnout 2008 election — in order to meet the threshold of 25% of all registered voters in New Jersey.
