TRENTON - In its understated chamber on the top floor of the Hughes Justice Complex, the New Jersey Supreme Court on Tuesday heard arguments in the first legal test of a growing political movement to recall several U.S. senators.
"The nation is watching. Yes, indeed," said Andrew Schlafly, attorney for the tea party group trying to recall U.S. Sen. Robert Menendez (D., N.J.). "New Jersey is a leader in this area."
New Jersey has the strongest recall law in the country. What happens here is expected to affect similar efforts to recall U.S. Sens. Mary Landrieu (D., La.), Ben Nelson (D., Neb.), and others.
The leader of New Jersey's movement, RoseAnn Salanitri, head of the Sussex County Tea Party, said she was in frequent contact with other recallers around the country, who are awaiting the outcome of this case.
Salanitri's group chose Menendez rather than U.S. Sen. Frank Lautenberg (D., N.J.), she said, because Lautenberg "is in his 80s and has stomach cancer. Menendez is in good health and has a long career ahead of him."
At issue is whether former Secretary of State Nina Wells was correct in January when she stopped recallers from going forward with a petition drive to oust Menendez. The secretary of state must certify a recall drive before signatures can be collected. Wells decided that the recall would violate the U.S. Constitution.
The tea party group argues that because recall is not addressed in the Constitution, it is permitted. Menendez says the silence on the issue means recall is prohibited.
"We're here today to help make it clear that the U.S. Constitution does not provide for the recall of U.S. senators," said Marc Elias, the Washington lawyer defending Menendez.
The Constitution sets six-year terms for senators, Elias said, meaning they cannot be recalled.
He told the court that states do have a role in federal elections: They decide when polls are open and how candidates qualify to run for office. But he said the Founding Fathers did not want states to influence Washington. They rejected the notion of allowing states to pay senators' salaries, "so the Congress would not be beholden to the states," he said.
Schlafly disagreed, saying George Washington, who headed the Constitutional Convention, favored recall. He produced a letter Washington wrote to his nephew, Bushrod, in which the first president said that if elected officials disobeyed the will of the people, they "undoubtedly will be recalled."
The justices politely but aggressively questioned attorneys as a group of homeschooled students watched. At one point Associate Justice Barry Albin pulled out a red book and read from an account of the U.S. constitutional ratification convention in New York in 1778 in which recall was vigorously debated.
"You're telling me they were wasting their time, because it was already in the Constitution?" Albin said.
Schlafly stuck to his point that silence in the Constitution on recall means it is permitted.
Outside the courthouse, Democratic State Committee Chairman John Wisniewski, also a Middlesex County assemblyman, said he did not believe the tea party groups even care whether Menendez is eventually recalled.
"It's not about the outcome," he said. "It's about the platform the tea parties want to use to tarnish a U.S. senator's reputation."
If they do win, the tea party groups would have to collect 1.3 million signatures of registered voters to get a recall question on the ballot.
Democrats have tried to paint tea party members as extremists. On Tuesday, Menendez's office issued a statement saying, "This organization rejoices in candidates who call it 'un-American' to hold major foreign corporations accountable for damage they cause and who believe discrimination by private businesses should be legal."
The statement referred to Rand Paul, who won the Kentucky Republican U.S. Senate primary with tea party backing and is now embroiled in a controversy about his opinions on civil rights.
Last week, the Conservative Legal Defense and Education Fund, Gun Owners Foundation, U.S. Border Control Foundation, American Coalition for Competitive Trade, and other groups filed amicus briefs in the New Jersey case supporting the recall of Menendez. Also joining the fight is the American Civil Rights Union, which gave legal assistance to the successful argument before the U.S. Supreme Court to permit unlimited corporate spending in federal elections.
Salanitri said she began the recall movement last year after writing to Menendez protesting President Obama's health-care legislation. She said Menendez didn't respond, but his office said it received her letter last July and responded to it on Aug. 4, 2009.
It is unknown when the state Supreme Court will make its ruling. But the case probably won't end on the top floor of the Hughes Justice Complex.
Whatever the Jersey jurists decide, Schlafly said, "there is an excellent chance this will go to the U.S. Supreme Court."