Wednesday, October 02, 2002

New Jersey Has Spoken. The New Jersey Supreme Court has voted unanimously to allow Frank R. Lautenberg, former NJ Senator, to replace Robert Torricelli on the ballot in the upcoming election. This means that two Republicans, four Democrats, and one Independent have decided to put the interests of the voters above the interests of Doug Forrester and Trent Lott. Six of the seven justices were appointed by former governor Christine Todd Whitman (Republican, and current EPA Administrator). It's hard to argue that this is merely a political decision if even the Republican justices joined it without dissent.

But will that stop Rehnquist, Scalia, Thomas, and the others? Only time will tell, and it will tell in very short order. Don't touch that dial.
Learn Something New Every Day. Thanks to Beth Stephens, my Civil Procedure professor at Rutgers School of Law - Camden, for setting me straight. In class today, we discussed the Torricelli seat. I now know that the Republicans should have no problem getting the case into federal court if they so choose, under 28 U.S.C. Sec. 1331, which provides jurisdiction in federal court for any controversy arising under federal law, or the U.S. Constitution. The Republicans will be able to make at least minimally compelling arguments speaking to both. While we are dealing with a state election (and, for such purposes, even U.S. Senators are considered state officials), federal law and the Constitution provide laws and regulations relating to voting. This is pretty vague, and awfully broad, but almost definitely sufficient to get the case heard.

The scenario (I could say "nightmare scenario") is that, following a NJ Supreme Court ruling going for the Democrats, the Republicans would immediately file in US Federal Court for the District of New Jersey, and the US Supreme Court would immediately take it out of their hands, bypassing entirely the US Circuit Court of Appeals. This is not unusual, and the same thing happened at one point during the Bush v. Gore controversy. This could conceivably happen even before the US Supreme Court's term opens next Monday.

This is all speculative, of course, and right now I'm still waiting (with proverbial baited breath) to hear the decision of the NJ Supreme Court.
Complexity Demands Care. My friend and fellow South Jersey blogger Tucker has weighed in on the Torricelli affair, and you can see his comments here. Unfortunately, he has bought wholesale into the Republican spin that the Democrats, in trying to replace Torricelli on the ballot, are attempting to overturn a clear and accepted New Jersey law prohibitng this. Does it even have to be said that this isn't true? Apparently, it does.

The truth of the matter is that the law is ambiguous on the issue. While the law does have certain deadlines and regulations concerning various events that may happen in and around an election, the specifics of this situation are not covered. In other words, the law neither permits nor bars the Democrats from replacing a candidate at this, admittedly, very late stage. This is why the NJ Supreme Court is hearing oral arguments today. The law is not clear, and a judgment must be made. This is why we have courts.

Unfortunately, many people (not just Republicans, by any means) dumb-down these issues to make them seem simpler than they are. As I've said before, I don't fully understand New Jersey election law, and I don't know the specific legal issues that this question will turn on. I am not qualified, therefore, to give an opinion on what is the "correct" result that all honest and objective people should hope for. Again, that's why we have the courts, and that's why this issue is being argued in the proper forum.

Many commentators seem to think that the NJ Supreme Court will allow the candidate switch. Some argue that they will do this because they are mostly Democrats (some of whom nominated by a Republican governor). Others argue that there is precedent in New Jersey election law that indicates a slightly different reasoning from the Republican line. The Republicans point out, and they have a good case, that there is a fundamental and inherent unfairness in allowing the Democrats to swap candidates so close to the election. Consider this: the Torricelli campaign will almost certainly share their opposition research with Lautenberg (despite the well publicized animosity between the two senators). The Forrester campaign, on the other hand, will have to start from scratch. But the court may take a different line. They are not out to protect the interests of Forrester, Lautenberg, or the parties. They are, and should be, concerned with the voters. The election laws, after all, are intended to provide for elections, through which the voters of the state may be allowed to choose their representatives. They are not intended to serve the candidates, they are intended to serve the voters. The voters would not be served by allowing Forrester to run practically unopposed. The voters would be served by allowing them a choice between major-party candidates.

Is this unfair to the Republicans? Yes, probably. I don't begrudge them their attempt to prevent it. But the court cannot serve both the Republicans and the voters at the same time, because their interests are directly in conflict. One must be protected at the expense of the other. I believe the court will choose to protect the voters, because I believe that is their mandate, under the language and the intent of the New Jersey election law.

If this does happen, it will be interesting to see how the Republicans try to finagle it into federal court. Right now in my civil procedure class, we are studying how federal courts can get jurisdiction over cases. Obviously, I'm no expert, but I don't see how New Jersey laws relating exclusively to a New Jersey election can possibly fall under the purview of the federal courts. The Republicans, obviously, want it to be heard by the Rehnquist court, so those staunch federalists, ever mistrustful of the federal government interfering in state law, can interfere in state law.

Obviously, this case is very different from Bush v. Gore, but if it gets to the U.S. Supreme Court somehow, be prepared to have that scab unceremoniously ripped open. Even if the Republicans manage to win this seat in November, which at the moment I doubt, it's going to cost them down the road. Bush v. Gore may cost them Florida, which puts Bush's reelection in jeopardy. Compounding the resentment can only make things worse. [Although New Jersey won't go for Bush in 2004 anyway, so it may not be a big deal.]
Lost in Wonderland. Saddam Hussein supports U.N. Weapons Inspectors in Iraq. George W. Bush does not, and intends to "thwart" the U.N. inspection plan. You can't make this up, people. Like a petulant child, this administration will have the war that it wants to have, and it won't tolerate any alternative. Even alternatives which, like weapons inspections, would be vastly superior at meeting the administration's own stated goals. War has become more important than the economy. War has become more important than the environment. These things are obvious. But now, we're seeing something new and highly disturbing. War has become, not a vehicle for achieving national security, but a replacement for national security as an end in itself. This White House can't continue to pretend that we face an imminent threat from Iraq when it steadfastly refuses to produce any evidence which might support that claim. This White House can't pretend that they are concerned about WMDs when a viable (though less than perfect) inspections program has been agreed to by Iraq and the U.N. There are now only two rationales for invading Iraq. First, to kill Saddam. As Ari Fleischer made clear yesterday, if some Iraqi dissident were to kill Saddam today, war would become a moot point. In other words, killing Saddam is the only motivation. Gulf War II: this time, it's personal. Second, not invading Iraq would be politically disastrous after spending so much time talking about invading Iraq.

I don't know how many people are likely to die in this war. But I do know that they are a sacrifice. They are a sacrifice to W's personal vendetta against the man who tried to kill his father, and they are a sacrifice to his continuing political ambitions. It's obscene.

Tuesday, October 01, 2002

Run That By Me Again. According to the New York Times, the United States has reached a compromise agreement with the European Union over the International Criminal Court. Apparently, the European Union has agreed not to extradite American soldiers and government officials on war crimes charges if the United States agrees to try them domestically. So, the ICC would only apply to Americans in cases were the United States fails to put its own people on trial here first. This seems eminently reasonable to me. Except for one thing.

It has been previously reported that this condition is already a part of the ICC, and that it applies to everybody. The home nation always has first crack at trying their own people, and the ICC kicks in only when that nation doesn't do it. So, what kind of compromise is this? I imagine that there's sloppy reporting going on somewhere, but I don't even know where to begin looking.

Monday, September 30, 2002

"I Can't Believe This Motherfucking Shit!" Pardon my French, but this old Eddie Murphy quotation perfectly encapsulates how I feel about today's bombshell that Sen. Bob Torricelli has dropped his reelection bid just 36 days out from election day. It's staggering. My feelings on this topic are very mixed.

First, I confess to feeling a little betrayed. I supported Bob Torricelli, as you know, and I was prepared to fight for him. I don't want to come off sounding like I was his biggest fan. I've been very frank all along about my misgivings about the Torch's personal ethics and character. He may have been a bastard, but he was our bastard, and I was fully prepared to support him. Now, he's given up the fight, and I do feel somewhat betrayed.

But I understand and respect his reasons. The polls were looking bad, very bad. But there's more to it than that. Despite what his former opponent, Republican Senatorial candidate Doug Forrester, has said, there is more to this than a case of the Democratic Party wanting to switch candidates when it looked certain they were about to lose. The reason that they were about to lose was Torricelli's ethical problems. In July, Torricelli was rebuked by the Senate for violating Senate rules. It boggles my mind that this is considered such a big deal. I mean, who gives a flying crap about Senate rules. I know a lot of people think that the Torch should be in prison for accepting illegal campaign gifts, and I can certainly see where they are coming from. But the Justice Department (John Ashcroft's Justice Department, no less) investigated the matter and declined to press charges. That has to tell you something. Far from being convicted, Torricelli has not even been accused of a crime. And yet, because he broke Senate rules, he's had to drop out of the race.

The point is that, take away the ethics problems, and Torch wins. This is New Jersey, and New Jersey will not accept the consevative politics of Doug Forrester. Forrester has run his entire campaign on the basis of not being Torricelli. In stump speeches, recognizing that he has less name recognition than the third assistant caterer from "The Sopranos", Forrester oftened introduced himself as "the man running against Torricelli." This race has become the standard bearer for the politics of personal destruction. Far be it from me to suggest that character and ethics aren't important in an election (I have only ever said that they are not important to me in this election), but surely substantive issues must also be important. Forrester has resisted at every step engaging Torricelli on the issues. Why? Because on the issues, he loses. For all I know, Doug Forrester is a great guy. The fact is that someone with Forrester's politics cannot win a statewide election in New Jersey. In the same way that Paul Wellstone could never win a statewide election in Georgia, a conservative can't win in New Jersey. Torricelli is the only guy Forrester could hope to beat, because as long as he talks about how much Torricelli is a bastard, he doesn't have to talk about how he will, if elected, only represent the interests of the hard-line conservative minority.

What we have now is a fascinating and perplexing legal debate. Can the state Democratic party replace Torricelli on the ballot? The Republicans have already made compelling arguments that this would be intolerably unfair. As much as I want to keep this seat Democratic, one must concede that they make a hell of a point. But, if there's one thing that Florida 2000 taught us, it's that while elections are intrinsically political, it best serves the electorate if election disputes are handled apolitically.

For that reason, I'm not going to weigh in on what should happen. I don't know the law. I know what I hope will happen: I hope that the Democrats will be permitted to replace Torricelli with another candidate, and thus having taken the Torch out of the picture, Forrester will be forced to discuss, openly, his politics. I will endeavor to discover as much as I can about this so that I can give an informed opinion on how the New Jersey courts should respond to this difficult issue. But until then, I can only wait and see how it plays out in the next few days. As of right now, the Torricelli seat is still very much in play.

I must say I'm revelling in the electoral chaos. Anyone who has a true intellectual interest in the workings of the law can't help but get off on bizarre, difficult cases like this one. It's a political junkie's wet dream. And I can't wait to see how it turns out.