Bob Menendez and the Politics of Senate Resignations

Sen. Robert Menendez (D-NJ)

It's sometimes hard to know when a politician should resign.  There are occasionally clear-cut cases.  Reps. Bill Jefferson and Jim Traficant come to mind (though Jefferson actually was thrown out by the voters, despite the fact that he should have resigned months earlier).  And there are cases where it seems like they're just doing it to appease the voters (I still don't understand what was going on with Rep. Chris Lee's resignation, as it seemed like a pretty run-of-the-mill sex scandal).  However, usually the cases fall somewhere in the middle, with waiting-and-seeing seeming like a bad idea but also you don't want to just give up a seat when you don't know how the cookies will crumble or whether or not someone is actually guilty.  This seems to be the case with Sen. Bob Menendez (D-NJ) at the moment, who had charges brought forward against him yesterday in a scandal involving illegally accepting gifts from a wealthy donor.

The question with whether Menendez should resign or not is fraught with political consequences, even if that's not what should happen.  For starters, Menendez is a major player in Washington, serving as the ranking member of the Foreign Relations committee at a crucial juncture for the committee (considering the currently nuclear deal pending in Iran).  Secondly, and perhaps most crucially, Menendez is a Democrat in a state that is currently governed by a Republican.  As a result of this, both sides have a case of political prudence involved here that goes beyond morality and goes to what legislation is pending before the Senate.

I see the partisan eye-rolling coming from you as a reader, but let's not dismiss the fact that the party makeup of this specific seat couldn't be very important in the coming weeks and months.  For starters, and most glaringly, there's the still-stalled appointment of Loretta Lynch in the Senate.  The Attorney General nominee has been backed up for weeks as the Senate debates the President's actions on immigration and funding on an abortion bill, but eventually her nomination will come before the body (Mitch McConnell cannot have it stay on the sidelines forever, and I don't see the President backing down on Lynch, particularly since it's hard to see a less controversial nominee getting appointed to fill the spot currently held by Eric Holder).  Four Republicans have come out in favor of her nomination (Sens. Hatch, Collins, Graham, and Flake), which, assuming that the Democrats can hold all of their caucus (Joe Manchin and Heidi Heitkamp, arguably the two most conservative Democrats in the body, both seem aligned with the Lynch nomination so this seems a pretty likely assumption), means that a tie-breaking vote from Joe Biden would seal-the-deal for Lynch's confirmation.  If you replace Sen. Menendez with a Republican, however, the President would have to convince one more Republican to vote for his nominee despite the fact that the people of New Jersey elected a Democrat that would certainly vote in favor of Lynch.

That's really the quandary here.  It's not whether or not I think that Menendez should resign (I personally think he should-clearly at the very least he participated in actions that he should have known crossed the line, and while criminal charges are a decision for the courts, Menendez participated in behavior that is beneath the dignity of a US Senator), it's whether it's fair that Chris Christie should get to appoint a Republican to Menendez's seat.  On-the-surface he obviously has every right to do so, and in fact did something similar a few years back when Sen. Lautenberg passed away.  However, no one thinks when they're electing a governor about that governor's Senate-appointment powers.  Almost every governor never actually has to use these powers-senators rarely leave office outside of retirement at the end of a term or losing an election.  The two offices also, generally, deal with different issues, with voters caring less about the political party of candidates when they are running for governor (focusing more on local issues like property taxes, employment, and education) than national issues (where social issues and national security are more in-play).  It seems inappropriate to fill Menendez's seat with a Republican since the people of New Jersey clearly didn't intend that (no Republican has won a Senate seat in New Jersey since 1972), even if that's the law.

My thoughts on this subject have always been that states should adopt a system similar to Wyoming.  In the case of a vacancy in Wyoming, whatever party the senator was elected from (Democrat, Republican, or otherwise) has their state committee chose three candidates from their party for the governor to appoint.  The party's three nominees are submitted to the governor who, regardless of their party-affiliation, gets to appoint the new nominee.  This way there is no risk of the seat changing hands without the voters' consent, but the new senator is at least selected by a statewide elected official.  This worked very well when Sen. Craig Thomas (R) passed away in 2007.  At the time, Wyoming was governed by a Democrat (Dave Freudenthal), so if it were a situation similar to New Jersey, the Democrats likely would have picked up a seat despite the state having sent a Republican to the Senate by an overwhelming margin.  Instead, the state's Republicans selected three candidates, and Gov. Freudenthal appointed John Barrasso to the Senate.  The seat didn't change hands, but a statewide-elected official chose the eventual office-holder.

I personally think this is a great system not just for the Senate, but also for the House, where currently special elections have to be held to fill the seat, but that leaves the constituents without representation in Congress for an extended period of time.  If this were to be the case in all states, we wouldn't have to worry about political pragmatism trumping the morally-correct move, which appears to be where the Sen. Menendez situation is headed.