Sabato's Crystal Ball

New Jersey Democrats: Growing Certainty at the Ballot Box

But not in the courtroom

Kyle Kondik, Managing Editor, Sabato's Crystal Ball September 21st, 2017

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Ever since comfortably winning the Democratic gubernatorial nomination in June, former Ambassador to Germany Phil Murphy has seemed like a towering favorite to succeed term-limited Gov. Chris Christie (R) as New Jersey’s next governor. Lt. Gov. Kim Guadagno, the Republican nominee, is being dragged down by Christie’s terrible approval ratings, and Murphy has led Guadagno by an average of nearly 25 points in the last three polls, including one released earlier this month by Quinnipiac that showed Murphy up 58%-33%.

Expecting Murphy to win this November’s election by such a large margin probably is unrealistic: The undecideds in the Quinnipiac poll lean at least a little Republican. And national Republicans haven’t completely given up on Guadagno — the Republican Governors Association released an attack ad against Murphy earlier this week, although the ad was only 15 seconds long (as opposed to the usual 30) and there was no indication whether or not there was real money behind it. Regardless, Guadagno doesn’t seem capable of making up the requisite amount of ground on Murphy. So we’re moving New Jersey from Likely Democratic to Safe Democratic.

More interesting than this gubernatorial race, though, is the ongoing trial of Sen. Robert Menendez (D-NJ), who faces federal corruption charges. Menendez’s legal conundrum is yet another complicating factor for Senate Democrats, who are already defending 25 seats next year.

It’s anyone’s guess whether Menendez will in fact be convicted, although we do wonder if the U.S. Supreme Court’s decision last year to throw out former Virginia Gov. Bob McDonnell’s (R) conviction has raised the bar for prosecutors in proving public corruption. That legal precedent has already been cited in another public corruption trial that recently broke in favor of a former top official: an appeals court threw out the conviction of former New York Assembly Speaker Sheldon Silver (D) a few months ago. The Menendez trial is scheduled to go for the next two months, and by the time of a verdict New Jersey will have a new governor-elect, who we and most others expect will be the Democrat, Murphy.

Republicans are already agitating for Menendez’s immediate expulsion from the Senate if he is convicted because they have their eyes on his Senate seat: If Menendez were to leave the Senate before the new governor is inaugurated, outgoing Gov. Christie would appoint a replacement (perhaps even himself) to serve out the remainder of Menendez’s term. A Democrat would be favored to win the seat next November, but adding a 53rd GOP senator would give the Republicans an important extra vote, particularly with a health care rewrite stalled in the Senate (although Senate Republicans may still pass such a bill next week being pushed by Sens. Lindsey Graham of South Carolina and Bill Cassidy of Louisiana).

Knowing the immense importance of preserving the 48 seats they currently hold, even a convicted Menendez seems likely to hang on until, Democrats hope, Murphy takes office in mid-January. Then he could potentially resign or, if not, Democrats could join with Republicans to produce the 67 votes required to expel Menendez from the Senate, knowing that Murphy would appoint a temporary replacement.

Just being convicted of a crime is not enough, on its own, to force a member of Congress from his or her seat. Here is yet another instance where norm, not law, guides American governance. In this, the Menendez situation brings to mind another recent Senate showdown: the failed nomination of Merrick Garland, by former President Barack Obama, to the Supreme Court.

After Justice Antonin Scalia died in early 2016, Obama nominated Garland to fill the vacancy. Democrats hoped that Republicans who controlled the Senate would confirm Garland and turn a conservative seat into a liberal-leaning one, but Senate Minority Leader Mitch McConnell held firm, declining to hold a vote on Garland or even to have hearings. Democrats cried foul, but there was nothing illegal about Senate Republicans’ actions: Nothing requires them to act on a court nomination — in fact, it’s not hard to imagine a situation in this polarized era where a Supreme Court nomination goes unfilled for years if the party not holding the White House has the power to block such an appointment, given the immense importance of Supreme Court seats. The only thing constraining the Senate was the informal power of public opinion, and the public not only tolerated Republicans keeping the court seat open, but they rewarded the GOP for it, passing the nomination to Trump by electing him president and keeping the Senate red.

McConnell played power politics and won. It’s not hard to imagine Democrats doing the same in the case of Menendez.

Also, there’s not really much precedent for the Menendez situation, or for his immediate expulsion if convicted.

Only 15 members of the Senate have ever been expelled, and 14 of those were because of support for the Confederacy during the Civil War. Another New Jersey Democrat, Harrison Williams, was convicted on May 1, 1981 as part of the Abscam sting. He held on in the Senate until March 11, 1982, when he resigned after the Ethics Committee recommended he be expelled.

Republicans would try to make an issue of a convicted Menendez remaining in the Senate, and they may have a good case on the merits depending on the results of the trial — the charges against Menendez are very serious, although Menendez seems likely to appeal if he loses. It’s hard to imagine Democrats relenting before the new governor takes over, or the public caring much about a senator who they likely have never heard of, particularly in a news environment in which there seems to be a daily deluge of major stories. And the whole kerfuffle could be over with as soon as mid-January, assuming Murphy wins and Menendez — again, if convicted — dutifully resigns or is expelled.

In other words, Democrats could just run out the clock on Menendez and assume, probably correctly, that they wouldn’t pay any sort of long-term price for doing so.

That is, assuming Murphy wins the election. And his dominant position gives Democrats a lifeline as they sweat out the Menendez trial.

Table 1: Crystal Ball gubernatorial ratings change