June 21, 2010

Will the Tea Party try to recall Russ Feingold?

By following this link, you can watch the May 25, 2010 oral arguments in the case of The Committee To Recall Robert Menendez v. Wells before the New Jersey Supreme Court. They last about an hour.

If time is at a premium, skip ahead to the halfway point.

A local Tea Party outfit is attempting to oust Menendez, one of NJ's United States Senators, by means of an untested State constitutional provision that purportedly authorizes the recall of federal officials.

Yesterday, Politico.com observed that the dispute's outcome might either inspire other Tea Party groups to similar action or else represent their fateful moment of "jumping the shark."

The U.S. Constitution is clear (in two separate locations) that Senators are to serve six-year terms. It's equally clear that the power to remove a Senator during that term and the mechanics by which Senators are to be removed reside with the U.S. Senate.

Some Tea Party enthusiasts, on the other hand, maintain that because the U.S. Constitution does nowhere expressly forbid States from recalling federal lawmakers, it may be accomplished by popular referendum within a Senator's State.

In Menendez's case, a petition would require 1.3 million signatures.

The Tea Party attorney, Andrew Schlafly, son of Phyllis and proprietor of the unintentionally comic website Conservapedia.com, rests practically his entire case on a private letter from George Washington to his nephew Bushrod Washington, containing an ambiguous reference to recalling members of Congress.

Unfortunately, Schlafly does so by essentially disregarding voluminous contemporary testimony and a number of decisions of the U.S. Supreme Court. Schlafly gets schooled pretty hard on these points by New Jersey Supreme Court Justice Barry Albin, starting around 34:00.

Mr. Schlafly also claims to possess the impossible knowledge that there was no discussion at all of the question of individual States' ability to recall federal legislators inside the tightly shuttered confines of the 1787 Constitutional Convention at Philadelphia.

That assertion is likewise a centerpiece of the Tea assumptions.

But again, the unfortunate Schlafly is confronted by Justice Jaynee LaVecchia (40:45) with a citation from his own legal briefs, showing that "recall was a matter that was being debated and considered and rejected by the members of the Convention at the time."

Schlafly: "Well Justice LaVecchia, that's an excellent point ..."

Well yes, yes it is. And not just excellent, but dispositive.

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