October 1, 2002
LAW? WHAT LAW?:
OFF TO THE RACES: Dropping 'The Torch'
(Charlie Cook, Oct. 1, 2002, National Journal)
Clearly, Democrats will have to scramble both politically and legally to head off any court challenges Republicans mount to efforts to replace Torricelli on the ballot. But despite all the contortions Democrats will have to go through, the bottom line is that New Jersey is a very Democratic state -- and getting more so every day. While Republican nominee Doug Forrester is certainly a bright, attractive and capable fellow, his strength in this campaign was that he is not Torricelli. His weakness was that he is a Republican.
Assuming the Democrats can switch nominees -- and there is little reason to believe they will not -- this was not a good break for the GOP. The problem now for Republicans is that, in a sense, they will almost have to build a candidate from scratch. Up to this point, Forrester did not need to offer a vision or an agenda for the future. That was irrelevant to his mission -- but the mission has changed. In retrospect, the GOP hit Torricelli too hard, too early -- and now will probably face a considerably less flawed Democrat on Nov. 5.
That last sentence is just astonishing. Mr. Forrester was down by 14 points in June, which is presumably why the Democrats figured they could slip Mr. Torricelli through despite his many ethical problems. The Forrester campaign isn't exactly awash in money, but to his great good fortune the Senator became the issue and so, as a double-digit lead turned into a double-digit deficit, the Democrats got Mr. Torricelli out of the race. As Mr. Cook suggests, they may have seen no serious barrier in the law that forbids them to replace him on the ballot. Indeed, given the NJ Court system, they may well succeed in violating the law. But to opine that the GOP should have anticipated that the Democrats would engage in criminal behavior in order to try and save their Senate majority is just ridiculous. It is also difficult to imagine what Mr. Cook thinks the GOP should have done instead. If Democrats are too be allowed to window shop for candidates whenever their current one is in trouble, then at what point would it have been safe to point out that Mr. Torricelli has significant character flaws, on the morning of November 5th?
Posted by Orrin Judd at October 1, 2002 12:07 PM
Its inconceivable that the Dems don't already have the switch in the bag. They wouldn't do it this way if there were any doubt at all.
Why would you think they can run that freakshow of a party any better than the country?
I didn't link to the article but I agree Mr. Cook's analysis is flawed. Typical of an inside the beltway pundit, they focus on the strategic implications of this move rather than whether it is ethical or legal (i.e the Jeffords switch, the Florida 2000 fiasco).
I stopped reading the Cook report on races because the winner always seemed to be based on $ and/or name recognition with little regard for stance on issues. I always thought Mr. Cook was too inside the beltway and this article seems to confirm this.
In re Mr. Cohen's comment that "they wouldn't do it this way if there were any doubt at all" assumes (1) that the New Jersey Supreme Court is as lawless as (or even more lawless than) the Florida Supreme Court; and (2) that the Democrats are confident of assumption (1).
As to assumption (1), I've never been much of a believer in "parity" of State and federal courts (even though I am a huge proponent of State sovereignty) but this STILL seems a bit far-fetched. I suppose that I fancy myself (hopefully with some realism) an astute observer of the federal court scene and I can envisage very few, if any, federal courts gutting as clear a statute as that in New Jersey to ensure the result Cohen, Cook and the New York Times presume. Is the New Jersey Supreme Court simply THAT lawless because of its location in a cradle of liberality? State court though it is, it has always garnered a decent bit of respect among those in the know.
As to assumption (2) -- if true -- the Democrats are even more rabid proponents of judicial activism than I imagined.
This lawsuit promises to be the most sickening display of Lefty hypocrisy since last Thursday, when the un-Honorable Schumer ironically accused Miguel Estrada of submitting clerkship candidates to an ideological litmus test. Those who live in glass houses . . . .
OJ--Because this is what the Democratic party is for, to get as many people from as many different constituencies as possible into office. Of course, they can't agree on anything once they get there.
Felix -- The really paranoid fantasy is that the Dems are betting that they'll win in NJ and then be taken up to SCOTUS, at which point they'll hyper-energize their base nationally with another election "stolen" by the "Republican Supreme Court." However, I generally reject conspiracy theories that would require politicians to be thinking more than two moves ahead and, as I suggest somewhere else, the NJ court would have to blunder pretty badly to raise a federal constitutional issue.
But as to the Dems "knowing" they're going to win, there really are only two possibilities. One, they do know they'll win and, by the way, the NYTimes agrees and the death case does seem to create an exception to the clear statutory language out of whole cloth. Two, their deal with the Torth is that they'll take a shot at a solution that lets him serve out his term, but if they lose in court then he's got to resign.
There is, I suppose, also the "elect Torch and he'll immediately resign in favor of X" campaign. But that seems to depend too much on trusting Torch, which I don't think even the Dems will do now.
As OJ points out in a newer post, the NJSC has agreed to hear the case. If they had any respect for the law they would not have done that as there's no doubt what the law says and what the facts are.
Your response post seems spot-on except that the "death-exception" case you mention, as I read it, does not create a death exception at all.
Instead, the New Jersey court in that (1960s?) case held that a death actually creates a VACANCY, as would a Toricelli RESIGNATION (which would fall under the 30-day portion of the statutory scheme). The case should not, in my view, be read as precedent to create statutory exemptions from whole cloth. And where would the New Jersey Supreme Court find such authority in any event? The State constitution? (Although I'm sure that document contains all kinds of glittering generalities about how wonderful a "democracy" with competitive elections is, it likely does not contain an even moderately specific provision permitting a judicial re-write under these circumstances.)
Even if the case to which you refer DOES serve as precedent for ad hoc judicial creation of exceptions -- I'll admit that in quickly skimming the case, I may have misread it -- certainly the court will realize that it is much more "equitable" (as the Democrats put it) to allow a DEAD candidate off the ballot than to permit the extraction of an unethical LOSING candidate (solely BECAUSE he's unethical and losing).
That is, even if the New Jersey Supreme Court accepts your reading of that particular precedent -- which is not implausible one -- I still cannot see how it could (activist and Lefty though it may be) plausibly use the case as precedent for the new exception the Dems seek.
Just my two pence.
BTW, is anyone aware of the current composition of the New Jersey Supreme Court (ideology, experience, INTELLIGENCE)? Is it possible to obtain the briefs on such short notice. I guess I'll check the website and see what I see.
Re: ideological composition of the NJSC
The guys on Fox this morning said it had a high majority of Dems.
Felix raises an excellent point, allowing for a replacement for a dead Senator doesn't necessarily allow for the replacement of a corrupt and losing Senator.
Perhaps we should get some Secret Service protection for Torricelli? I don't want to think they'll stoop to that, but if they won't let any other law stop them...
Ted Kennedy offered to drive him home after his speech.
Cynicism has nothing to recommend it except this, it is so often right.
You said a mouthful there, brother. Once again does a State supreme court baffle me so.
(Actually, I suppose there's nothing baffling about it. The court just effected a naked power grab without regard for consequences in future elections. "No matter about future elections," the "justices" are thinking, "we'll just see about those [and distinguish this one if necessary] when they arrive.")