From The Golden State To The Garden State

We in California are used to recalls of public officials. They don't always turn out as well as we planned. Arnold Schwarzenegger is a prime example. But we've had the recall ability so long that the California Supreme Court declared long ago that state recall has no validity in federal election matters. Somebody forgot to tell New Jersey.

California was among the early entrants in the "term limits" process. Two companion cases were brought before the California Supreme Court when termed-out Congressmen filed for re-election. The Court ruled that there are some areas in which federal supremacy is legitimate, and that the U.S. Constitution made it clear that rules regarding election of federal officeholders were the sole province of federal rules. The Court's opinion was cited later in the federal case of U.S. Term Limits, Inc. v. Thornton, 514 US 779 (1995), which was not a California case but still agreed with the California Court's opinion. The U.S. Supreme Court ruled 5-4 against the State of Arkansas where Arkansas had specifically set term limits for federal elected officials. The decision was actually even stronger than the split indicates. Justice Thomas filed a dissent because he disagreed with much of the reasoning, but felt the right conclusion was reached.

New Jersey has now entered the fray. New Jersey has a similar, but much less-tested version of recall than California's. The star of our photo is ultraliberal New Jersey Senator Robert Menendez, ironically being sworn in by Vice President Dick Cheney at the beginning of the 110th Congress. It seems to have come as a surprise to some current disgruntled voters in New Jersey that liberal New Jersey elected a liberal Democrat in a liberal year. Menendez is in the fourth year of his six-year term, but angry New Jersey citizens have decided that he should not be allowed to finish out his term.

Upon the filing of the recall papers, supporters of Menendez filed court papers citing U.S. Term Limits as forbidding such a move. In an odd ruling that kicked this political football down the road, a three-judge appellate court declined to rule on the validity of the recall itself, and ruled instead that the case was not "ripe" for adjudication. "Ripeness" is a legal doctrine that prevents lawsuits from being appealed until all the procedural ducks are in a row allowing for a full appellate decision on the entire merits of the case. The panel declared that there was no apparent state constitutional bar to the recall process, and since the required signatures had not yet been collected on the recall petition, it was too early to be deciding on the actual recall.

That may have been a bit of self-serving dodging of an issue. California makes recall a relatively easy process, requiring only a small percentage of the electorate to get the recall on a ballot. But New Jersey set the recall bar very high. In order to get a recall on the ballot, proponents must obtain the signatures of 25% of the registered voters. No mean feat under the best of circumstances. Given the narrow margin of victory of Republican Governor Chris Christie, who rode the tide of voter disaffection in the Garden State, the likelihood of getting 25% of the state's electorate to sign a petition to recall a federal Senator seems very far-fetched. That's 1,300,000 signatures. But since the untested New Jersey statute which allows U. S. Senators from New Jersey to be recalled requires so many signatures, it's a great way for liberal judges to appear non-partisan in a year highly unfavorable for liberals.

By allowing the measure to go forward, the panel may never have to deal with the issue. Arguably, the decision is bad law, but good politics. If the petition drive fails, the judges will never have to face their own recall or, alternatively impeachment, for defying the will of what may be a narrow current majority of New Jersey voters. Well, as the lawyers say, hard cases make bad law. In the unlikely event that the petition succeeds, the panel (or some other appellate panel) will still have to deal with the issue, but possibly in more favorable times. If the petitioners were to fail at that level, the case would undoubtedly be appealed to the New Jersey Supreme Court.

I hope they remember that the New Jersey Supreme Court produced future United States Supreme Court Justice William Brennan, the most notorious constitution-shredder of the twentieth century. Currently, the New Jersey Supreme Court is comprised of five justices appointed by liberal Democrat governors and two appointed by moderate-liberal Republican governor Christine Todd Whitman. It's not hard to guess that a court like that is going to lean toward making a decision which will most favor liberal Democrats.

There is another difference between California law and New Jersey law. In both states, the law creates a two-tier ballot. First, the voters determine if the official should be recalled at all. If the answer is yes, they voters then get to choose the successor office-holder. The latter provision is where the states differ. In California, once the recall itself is successful, the voters get to choose from a wide-open list of candidates who have qualified for the ballot by sufficient ballot-signatures (again, a very low percentage of the registered voters). Schwarzenegger was one of 134 candidates to replace recalled Governor Gray Davis. But in New Jersey, the alternate candidates have been pre-chosen by the major political parties, and it's very likely the Democrats would choose, who else, Robert Menendez.

That sets up a true legal quagmire for those who want Menendez out. If he won the election by a narrow plurality, their constitutional issue would be gone with the wind for all practical purposes. If he lost, he would then have the entire rest of the appellate process, both state and federal, open to him to challenge the validity of a state statute limiting the terms of federal elected officials. However much I may sympathize with the political ideals of the petition-supporters, I can't help but think this is a lose-lose situation.

First, I find it highly unlikely that the recall could ever pass muster at the United States Supreme Court. As a devotee of federalism, I want the federal hands off the state's prerogatives. But in order to believe in federalism, I must also believe that in certain areas (much narrower than our current prevailing situation), the states have to keep their hands off purely federal matters. The United States Constitution specifically defines the rules and roles of United States elections, and leaves state matters to the states. The United States Supreme Court has already ruled on the matter, and there is no reason to believe that a future New Jersey case before the high court would or should produce any different result.

Equally important, the road to hell is paved with good intentions. And I might as well throw in the doctrine of unintended consequences as well. The Tea Party movement is heavily involved in the recall. It demonstrates the danger of a large group, meaning well, but stumbling about like a bull in a china shop when it actually gets involved directly in the political process. For one thing, a successful recall could put Republican Governor Christie in a terrible position. Politics and law are more complicated than most well-intentioned "civilians" would like. If the Democrats picked someone other than Menendez, he might be angry enough to resign, in which case Christie would be entitled by law to appoint a candidate of his own choice, relying on the dubious constitutionality of the recall and the time-frame provided for the installation of the most popular recall candidate.

No matter what happened, Christie would be required to take a highly-controversial position when he's trying to get New Jersey's real problems under control. This controversy could have exactly the opposite effect from what is intended. At best, it's a major distraction from the underlying desires of the Tea Party movement and all conservatives, which is for conservative governors to reform the gross overreach of state government and put the citizens back into the formula of governance.

As much as I may enjoy a good bare-knuckles political brawl, my view of the situation is what I've said about other fights. Know when to pick them. This is the wrong time, in the wrong place, and the wrong law to be using as referee over the fight. If Menendez is wise, he will simply ignore the whole thing, knowing that all the odds are in his favor, both at the petition level and in the courts. The Recall Committee will attempt to bring in the moderate and independent voters in a cause that few understand or care much about. If they fail to gain sufficient signatures, which is extremely likely, Menendez stays in office, and the organizers look like fools on a snipe-hunt. Menendez comes off looking like the sensible one, while his opponents come off as slightly nuts. That apparent nutiness could seriously damage any conservative who runs against Menendez in 2012, particularly if the candidate has public support from the same people behind an unsuccesful recall movement. This could amount to snatching defeat from the jaws of victory.