TRENTON — A 1787 letter from George Washington did not appear to trump other texts and events yesterday as the state Supreme Court hit the history books while hearing arguments on a tea party-connected group’s effort to recall U.S. Sen. Robert Menendez. In a case that is being watched in several states, the recall committee with ties to a...
Attorneys for U.S. Sen. Robert Menendez (D-N.J.), the state attorney general and the Sussex County Tea Party argue before the justices about whether the tea party can mount an effort to recall the senator. Arguing for Sen. Menendez is Mark Elias.TRENTON — A 1787 letter from George Washington did not appear to trump other texts and events yesterday as the state Supreme Court hit the history books while hearing arguments on a tea party-connected group’s effort to recall U.S. Sen. Robert Menendez.
In a case that is being watched in several states, the recall committee with ties to a Sussex County tea party group is seeking the removal of Menendez (D-N.J.), whose term expires in 2012. The Committee to Recall Senator Menendez says the senator is a big spender and it opposes his support of the recently passed health care reform law.
The issues before the court are whether the U.S. Constitution, in the absence of a specific prohibition, pre-empts the state’s Constitution — which permits the recall of federal lawmakers; whether the matter should be before the court now, before signatures on petitions have even been collected; and what the framers of the federal Constitution had in mind regarding recalls.Appearing before the high court for the recall group, Far Hills attorney Andrew Schlafly, son of conservative activist Phyllis Schlafly, cited a letter George Washington wrote to his nephew, Bushrod Washington, on Nov. 10, 1787. In the letter, the founding father said that when the people’s representatives act contrary to their wishes "their Servants can, and undoubtedly will be, recalled."
The letter seemed less persuasive to some of the justices than the Federalist Papers and the 1787 Constitutional Convention itself. Justice Jaynee LaVecchia pointed out the notion of recalling members of the House of Representatives (U.S. senators originally were chosen by state legislatures) got a thumbs down from the founders.
"Recall was a matter that was being debated and considered and rejected by the members of the convention," LaVecchia said.
Justice Barry Albin said the issue was debated as some states considered ratification of the Constitution, and Justice Virginia Long bluntly called the Washington letter a "slim read."
"I can understand why you’re relying on George Washington’s letter, but really, it is a slim read, in light of the rest of the history of the Constitution to suggest that the framers intended some recall by the state — a mighty slim read," she said.
Justice Roberto Rivera-Soto asked Schlafly if there is a distinction between a recall and a recall election. The attorney said that is key to his case.
"What we’re talking about here is some healthy petitioning activity that works well here in New Jersey," Schlafly said.
He maintained the issue of whether Menendez can be removed from office does not need to be decided before signatures are collected and accepted.
The case began last fall after then-Secretary of State Nina Mitchell Wells rejected the committee’s recall notice, the filing of which is necessary before petitions can be circulated. At the time, Wells said the U.S. Constitution supersedes the state Constitution.
After a notice is approved, a committee must get the signatures of 25 percent of registered voters of the affected district — 1.3 million voters in this case — before a recall election can be held.
But Washington, D.C., attorney Marc Elias, who represents Menendez, said a recall effort that cannot result in a recall is a sham.
"The fact that this is a complicated case and a novel case does not make it a difficult case," Elias said. He said a recall would be costly to Menendez, who would have to raise money and take time to fight it. He also said New Jerseyans would be harmed because they would waste time participating and be deceived by petitions bearing "the imprimatur of the state of New Jersey."
Menendez was not in the courtroom yesterday.
"He’s standing up to ‘big oil’ today by pushing for passage of his bill to ensure oil companies that spill are fully responsible for economic damages they cause," said Afshin Mohamadi, the senator’s spokesman. "This is the perfect contrast to the tea party, which believes that holding a major foreign corporation responsible for damage from its oil spill is ‘un-American.’â "
Mohamadi was alluding to Kentucky Senate nominee Rand Paul, who criticized President Obama for harsh statements an administration official made about oil giant BP and the Gulf oil spill.
State Democrats on Monday unveiled a web page tying leaders of the recall movement to controversial political causes, including casting doubt on Obama’s citizenship.
"This seems to be more about a political agenda to have an opportunity to parade around the state collecting signatures to tarnish the reputation of the United States senator," Democratic State Chairman John Wisniewski (D-Middlesex) said yesterday outside the courtroom. "Quite frankly, I’m not even certain that they really care about the ultimate outcome."
Supporters of the recall say the case is being watched in Louisiana, Colorado, North Dakota, Michigan and Washington. Schlafly said it could go to the U.S. Supreme Court.
"It clearly is in the category of significant cases, which means there is a possibility the U.S. Supreme Court would want to hear this case," former state Supreme Court Justice Peter Verniero said yesterday. "There obviously is a signifcant federal question in this case."
Six justices heard the case yesterday because the term of former Justice John Wallace Jr. expired last week. A quorum of five justices is required to hear cases. Following its custom, the court did not say when it would rule.
Suzanne Kimble (center), one of the original signers of the petition to recall U.S. Sen. Robert Menendez is seated with Jack Carey (right) in the gallery Tuesday. Attorneys for U.S. Sen. Robert Menendez (D-N.J.), the state attorney general and the Sussex County Tea Party will argue before the justices about whether the tea party can mount an effort to recall the senator. Arguing for Sen. Menendez is Mark Elias and arguing for the Tea Party is Andrew L. Schlafly.