In Death as in Life, Battle Over Lautenberg Seat May Go to High Court

Mark J. Magyar | June 4, 2013 | More Issues, Politics
Christie won’t want Senate race on November ballot because it would help Democratic chances

The late U.S. Sen. Frank Lautenberg (D-NJ).
U.S. Sen. Frank Lautenberg (D-NJ), the fiery liberal whose return from retirement required a favorable ruling from the New Jersey Supreme Court, will likely spark a new constitutional battle over his seat in the wake of his death yesterday, leading political scientists agree.

Republican Gov. Chris Christie, who led the state’s political establishment in eulogizing Lautenberg’s accomplishments yesterday, has the right to appoint an interim senator to succeed the self-made multi-millionaire from Paterson who has represented New Jersey in the Senate for 28 of the past 30 years.

But it is not clear from the language in New Jersey’s election statute whether Christie’s choice can serve for 17 months until November 2014, as Christie would prefer, or will have to run in November, as Senate President Stephen Sweeney (D-Gloucester) and Assemblyman John Wisniewski (D-Middlesex), the state’s Democratic chairman, are already demanding.

Such a scenario could scramble the governor’s race. Christie’s reelection bid against Sen. Barbara Buono (D-Middlesex) would be relegated to the second line on the ballot under the U.S. Senate candidates, with Mayor Cory Booker — the only Democrat who can come close to Christie in celebrity and money-raising prowess — most likely heading the Democratic column as the Senate candidate.

Booker, who has already raised $1.4 million for an expected 2014 Senate race, would be favored against any Republican Christie named to Lautenberg’s seat, and his presence on the ballot would immediately reenergize a Buono campaign trailing badly in fundraising and in the polls.

Booker’s presence at the top of the ticket could pull in large numbers of African-American voters — such a key constituency that party strategists are urging Buono to select an African-American running mate. A U.S. Senate race in New Jersey would draw the large national money that Buono has so far been unable to, and narrow the chasm in TV advertising expenditures between the two parties.

At the very least, the new campaign dynamic would quiet the fears of Democratic leaders that a Christie landslide could cost them legislative seats in November. In the best-case scenario, it could even unite the state’s fractured and fractious Democratic Party.

For all of these reasons, Christie is bound to insist upon an interpretation of the election statute under which no new Senate election has to be held until 2014.

“The Democrats have to try and contest that interpretation,” said Ben Dworkin, director of Rider University’s Rebovich Institute for New Jersey Politics. “They stand to benefit if the Senate election is in 2013, so yes, I would imagine we are going to court. The statute says two contradictory things, and someone has to decide, and that someone is going to be the court.”

“If the governor tries to wait until 2014, I think it definitely goes to court,” said Patrick Murray, director of the Monmouth University Polling Institute.

The High Court, Again

If the election controversy heads to the Supreme Court, it would be the second time in 11 years that the high court would be called upon to make a ruling that essentially determined who would hold the Lautenberg seat.

Lautenberg, who decided not to run for reelection in 2000 after 18 years in the Senate, jumped at the chance to get back in two years later when the party’s political leadership asked him to step into the breach after disgraced U.S. Sen. Robert Torricelli (D-NJ) dropped out of the race because of ethics charges just one month before the election. At the time, it appeared very likely that Republican Doug Forrester would defeat Torricelli to become the first GOP senator to represent New Jersey in 24 years.

To the consternation of New Jersey Republican leaders, a New Jersey Supreme Court headed by Chief Justice Deborah Poritz, an appointee of GOP Gov. Christine Todd Whitman, upheld the right of Lautenberg to replace Torricelli on the ballot at that late date, and Lautenberg went on to defeat Forrester by more than 200,000 votes.

Poritz was already under fire from the GOP for having appointed a neutral tiebreaker for the Legislative Redistricting Commission the year before who had effectively handed control of the Legislature over to the Democrats for the next decade.

But the Poritz Court was never the center of a political firestorm like the one that has pitted Christie against Sweeney over the past two years. The battle for ideological control of the court led to Senate Democrats rejecting two Christie nominees, refusing to consider two others, and leaving a shorthanded five-member Supreme Court with two fill-in appeals court judges to consider such controversial cases as the potential future of the Lautenberg seat.

The court itself — currently made up of two Democrats and two Republicans with independent Associate Justice Jaynee LaVecchia, a Whitman administration lawyer, often serving as the critical swing vote — will be under intense political pressure in deciding the case.

At the heart of the controversy are conflicting statutes: Both the U.S. Constitution and N.J.S.A. 19:3-26 allow Christie to appoint a successor to Lautenberg who would serve until the next general election, which is scheduled for November. However, N.J.S.A. 19:27-6 holds that if the vacancy occurs in the 70 days before a primary election — as is the case with Lautenberg’s death the day before today’s primary — the new appointee can serve until the second succeeding election, which would be November 2014. Under that statute, the governor has the right to call a special election, but is not obligated to do so — an interpretation that the nonpartisan Office of Legislative Services agreed with in an advisory opinion issued yesterday.

Political Implications

The political implications of what is expected to be a decision that ultimately goes to the New Jersey Supreme Court are striking for both Democrats and Republicans.

First, for Democratic party leaders worried that a Christie landslide victory over Buono could potentially cost them seats in a Senate they control with a narrow 24-16 majority and an Assembly they hold by a 47-33 margin, the presence of Booker or another popular Democratic candidate for U.S. Senate would assuage those concerns about Christie coattails.

Second, while Booker has a head start in both fundraising and name recognition, a 2013 special election would give Democratic Congressmen Frank Pallone and Rush Holt the opportunity to jump into a potential September primary without having to give up their House seats if they lost.

Third, any Republican appointed to the seat by Christie who had 17 months to establish a record as an incumbent would have a much better chance of defending that seat, even against a strong candidate like Booker, than if he or she were only in office for five months in a holdover role before having to run for reelection.

Finally, for both the national Republican and Democratic parties, the addition of another Republican U.S. Senate seat would reduce the Democratic margin to 52-46, with two independents caucusing with the Democrats — a narrow edge with such volatile issues as gun control or President Obama’s healthcare plan often coming down to a vote or two.
For Christie, the political implications of his selection of Lautenberg’s replacement are enormous if he wants to run for the Republican presidential nomination in 2016, Dworkin noted.

“The governor wants to be president, and therefore, the significance of this pick cannot be understated because his or her votes will be viewed as this is how Chris Christie would vote if he were in Washington,” Dworkin said. “Therefore, Christie will want someone of like mind and ideology and political perspective, someone who’s going to strengthen his national persona.

“Second, the Senate is up for grabs, and for a governor who wants to be the leader of the national Republican Party, it would be a strategic mistake to give up the opportunity to get a Republican Senate seat in the Northeast that he can point to when he runs for president,” Dworkin said.

Dworkin said that is an argument against Christie selecting an elder statesman, such as former Gov. Thomas H. Kean, as Kean did in 1981 for a year when he chose Nicholas Brady to replace Sen. Harrison Williams (D-N.J.) in the wake of the Abscam scandal.

It is also an argument for a firm Christie loyalist — someone like Sen. Joseph Kyrillos (R-Monmouth) or Senate Minority Leader Thomas Kean Jr. (R-Union), both of whom ran unsuccessfully for the U.S. Senate, Assembly Minority Leader Jon Bramnick (R-Union), Lt. Gov. Kim Guadagno, or Sen. Jennifer Beck (R-Monmouth).

Cause for Concern?

It was the potential for a Republican governor to succeed unpopular Democratic Gov. Jon Corzine in the 2009 election that led some Democrats to privately question whether Lautenberg should seek reelection for a fifth time in 2008 at the age of 84 — an age that would make him the third-oldest senator in American history by the time his term expired in 2014.

But Lautenberg loved serving in the Senate, and delighted in his unexpected opportunity to return to the Senate after the 2002 election. “He was undoubtedly one of the few people in the history of the United States to serve as his state’s senior senator twice,” John Weingart, associate director of Rutgers University’s Eagleton Institute of Politics, quipped.

Lautenberg not only did not consider stepping down in 2008, but spent several months denouncing Booker for trying diplomatically to persuade him not to run next year, when he would have been 90 years old.

“Significantly, he won his first race against Congresswoman Millicent Fenwick in 1982 by implying that she was a little old to be elected and she was just 74,” Weingart noted. “That race also was significant because it was a case of a multimillionaire seemingly coming out of nowhere to be elected to high office. That’s more common now than it was then.”

Lautenberg, who made a fortune at Automatic Data Processing, used his wealth to make President Richard Nixon’s infamous “Enemies List.” But in the Senate, Lautenberg proved to be a consistently liberal senator, “a self-made millionaire who never forgot what it was like to be poor, and his record showed it,” Dworkin noted.

The Liberal Lion

Julie Roginsky, the veteran Democratic operative, yesterday called him “the last liberal lion” of the Senate — a reputation that grew during his second 10-year stint in the Capitol.

Lautenberg often “seemed to have a chip on his shoulder” about being considered New Jersey’s second senator, Weingart noted, and he feuded both with U.S. Sen. Bill Bradley and most famously with Torricelli. His 1988 reelection campaign slogan — “the Senator for New Jersey” — seemed a backhanded slap at Bradley who was considering running for president at the time.

But it was also a true reflection of what Lautenberg did, as admirers from both parties like former Gov. James Florio, who worked closely with Lautenberg on transportation and environmental issues as both a congressman and as a governor, and former Gov. Thomas H. Kean, who relied on Lautenberg to fight in the Senate for New Jersey’s fair share of federal funding, recalled yesterday.

New Jersey voters agreed, choosing to send him back to Washington in 1988 rather than a West Point Heisman Trophy football star and Vietnam War hero named Pete Dawkins. Lautenberg, in a campaign engineered by James Carville and Paul Begala, who would become famous four years later for electing Bill Clinton president, denounced Dawkins as a “carpetbagger,” and Dawkins famously called Lautenberg a “swamp dog” for his campaign tactics. Lautenberg thought the sobriquet demeaning to the dignity of the Senate at first, but he laughed about it in later years.

Lautenberg’s reputation as the senator who paid attention to New Jersey issues became ingrained with the state’s voters, but it also led some to undervalue his accomplishments, Dworkin said.

“In political science, there’s often this narrative that you’re either a national senator or you’re really a congressman for the state,” Dworkin said. “Frank Lautenberg’s legacy is that he was able to do both. That made him unique in his tenure in the Senate.”

In addition to bringing billions of dollars back to New Jersey for transportation and other capital projects, Dworkin said Lautenberg’s legislation to raise the drinking age “absolutely saved lives. He took on Big Tobacco and got rid of smoking on airplanes and raised public awareness of the whole issue of secondhand smoke, which was a huge policy development.” His antismoking campaigns meshed closely with his record as a fervent environmentalist on issues ranging from clean air and clean water to toxic waste cleanup and shore protection programs.

Lautenberg also was “a fierce advocate for gun control, and the fact that he was able to take on the NRA and to push through legislation that denied those convicted of domestic violence from getting gun permits was a huge victory,” Dworkin said. Despite severe illness, he returned to Washington to vote on President Barack Obama’s gun control legislation.

Finally, Lautenberg took a strong interest in Middle East politics, and was a fierce advocate for U.S.-Israeli relations, he said.

“More recently, he seemingly had no patience for the Bush administration’s policy in Iraq,” Dworkin recalled. “In an era when many politicians were terrified of being labeled antipatriotic or anti-American, Frank Lautenberg not only argued in the Senate over policy, but had no problem calling people like Vice President Cheney a ‘chicken hawk.’”

Lautenberg called Christie “the king of liars” after the governor cancelled the Access to the Region’s Core (ARC) rail passenger tunnel project that Lautenberg had fought so hard to get funded and then fought so hard to save.

“It’s no mystery that Senator Lautenberg and I didn’t always agree,” Christie said yesterday. “In fact, it probably is more honest to say we very often didn’t agree.”

But Christie added, “I think we’d all sign up today for a life like Frank Lautenberg had of 89 years of fighting and fighting hard.”