Lawyers for Senator Robert Menendez (D-NJ), and for the committee seeking to recall him from office, appeared before the New Jersey Supreme Court today to deliver oral arguments in the legal and constitutional case that, to paraphrase Peggy Ackerman of The Star-Ledger (Newark), involves a clash of constitutions.
Marc Elias, co-counsel for Menendez, made the senator's case. He essentially gave the same argument he gave earlier before Judge Edwin Stern and his two colleagues of the Superior Court's Appellate Division. That panel ruled per curiam on March 16 that the Committee to Recall Robert Menendez from the Office of United States Senator (http://recallnj.com/) had the right to gather signatures on a petition to call a recall election under New Jersey's Uniform Recall Election Law, and under Article I, Paragraph 2b of the New Jersey State Constitution, that authorized that law.
Elias insisted that US Senators are not subject to a recall, and are elected by the people of each State for six years.
The fact that this is a complicated case and a novel case does not mean that it is a difficult case.
But at one point, Justice Roberto Rivera-Soto reminded Elias of what he was asking:
You're asking us to invalidate a provision of the New Jersey Constitution voted on by the people of the state of New Jersey and enacted by the Legislature.
Elias said that he indeed was, because the State and federal Constitutions were in conflict.
Andrew L. Schlafly
Andrew L. Schlafly, lead counsel for the recall committee, delivered the oral response. In it, he reminded the court that the US Constitution is silent on the matter of recall--and silence could not equate to prohibition.
There are many rights of the people that are not in the Constitution. [For example, t]here's no freedom of association in the U.S. Constitution — it's a very important right.
Schlafly also observed:
Our New Jersey constitution emphasizes that all political power is inherent in the people. This is not just one little issue tucked away here. Our constitution is based on this principle.
Justice Barry Albin seemed to take issue with the historical evidence that Schlafly offered. This consisted of a letter from George Washington, shortly after the Constitutional Convention, to the effect that the right of recall, though not explicitly stated in the Constitution, was a power retained by the people. Albin asked,
The only thing you can find is some handwritten note from Washington and you want to disregard the Federalist Papers?
RoseAnn Salanitri
But neither Albin nor the AP's Geoff Mulvihill nor any other journalist could find a reference in the Federalist Papers saying that the power of recall was forbidden in the Federalist Papers. In fact, those Papers do not appear to mention recall except in passing--though members of the New York Ratification Convention had a pronounced difference of opinion on recall, which had been expressly part of the Articles of Confederation. Furthermore, James Madison, co-author of those papers, also wrote the Bill of Rights, including Amendment X, which reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Menendez petitioned for certification on April 5. But the State, on April 22, submitted a brief in which they declined to contest the matter any further. Therefore, as Mulvihill observed wryly, the senator's legal team, not the State Attorney General, is seeking to "quash" the recall. Menendez is listed as an "indespensible party."
Of all the many reports filed thus far, The Philadelphia Inquirer's report gives the best summary of the history of the recall movement and what drove RoseAnn Salanitri, its chairman, to instigate it. Salanitri, who is also president of the Sussex County Tea Party, led a group of spectators who sat in court during the argument and spoke to reporters outside the courthouse later. She told Cynthia Burton of the Inquirer that she acted after finding Menendez arrogant and unresponsive to her concerns on healthcare reform and other issues.
Elias and Schlafly presented their arguments before a six-member Court. The bench occupied until recently by Justice John E. Wallace remained empty today.
This article is part of the Robert Menendez series.
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