By this time next week, Sen. Bob Menendez could be faced with a decision only a novel few of his predecessors have been asked to make: resign following conviction in a court of law or hold tight to his seat over the howls of partisan objectors.
The New Jersey Democrat and an associate are currently being tried in New Jersey on corruption charges. Closing arguments in the case could wrap up on Monday, which means jury deliberations are finally on the horizon. But the real drama might not begin until after the verdicts are handed down.
The question in the minds of Washington has less to do with Menendez’s personal fate, but the future of his seat. If found guilty and chased from office, New Jersey’s Republican governor, Chris Christie, would be tasked under state law with appointing a replacement. (Note: Menendez could very easily be acquitted; there is no consensus on where exactly his trial is headed.)
Adding to the drama, the Garden State will vote next Tuesday to elect a new governor. Democratic nominee Phil Murphy is an overwhelming favorite in the race, far outpacing GOP Lt. Gov. Kim Guadagno in the polls. That’s thanks in no small part to Christie, who will leave office as one of the most unpopular elected officials in the country.
But Christie doesn’t go until the middle of next January. So if Menendez were to be convicted in the coming days and then choose to resign (he’s been very clear that he won’t) or find himself expelled from the Senate by his colleagues (which requires 67 votes), his successor would likely be a Republican. It might even be Christie himself.
Which brings us to back to the winter of 2016.
On February 13, Supreme Court Justice Antonin Scalia died overnight during a hunting trip in Texas. Just over a month later, then-President Barack Obama nominated appeals court Judge Merrick Garland to take his seat.
And then, for months on end, nothing.
Republicans in the Senate never allowed Garland a public hearing. His nomination was tabled as the presidential campaign slouched toward November. With Donald Trump’s victory, Garland’s hopes of ever sitting on the high court were effectively doomed. On January 31, Trump tapped Neil Gorsuch for the bench. He was confirmed on April 7 in a mostly party-line vote.
Garland is back at work now at the job he never really left and seems to be getting along fine. But the decision by Republicans to ice his nomination could soon be viewed, if only for a bit, in a different light by Menendez and Democratic Party leaders.
With a Senate seat flipped, the Republican majority would reach 53. And while that’s hardly a sea change, anyone who’s been paying attention to the Obamacare fight or the unfolding battle over the GOP tax plan knows just how precious those votes can be. Another Republican in the chamber means Majority Leader Mitch McConnell has that much more room for error — and defections.
Mix that in with the still potent liberal anger over Garland’s treatment and the odds of Menendez being forced out become almost impossibly long. Even before 2016, the fates of office-holders accused of misconduct, or indicted and convicted, have been very much tied to the very narrow political imperatives of the moment. In a blog post to “Sabato’s Crystal Ball” on September 21, the online political site’s managing editor, Kyle Kondik, spelled out the rationale Democrats would likely employ if a jury frowns on Menendez.
“The only thing constraining the Senate (in dealing with Garland’s nomination) 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,” he wrote. “McConnell played power politics and won. It’s not hard to imagine Democrats doing the same in the case of Menendez.”
In fact, anything else would be a shocker. Menendez, for better or worse, isn’t going anywhere — at least not before Phil Murphy arrives in Trenton, New Jersey for his swearing-in next year. And the Democrats, in an odd narrative twist that befits the Trump era, can thank Garland for making it a no-brainer.