MAYBE I’M JUST SLOW, as I just got home and I’m cooking dinner. But this post by Hesiod assaulting Dave Kopel makes no sense. Kopel says a Senate term can’t be extended to 8 years. Hesiod says: what about Jean Carnahan. But Jean Carnahan is defending her seat right now against Jim Talent, just two years after being named to fill the vacant seat.
UPDATE: Okay I’ve reread Hesiod’s post and I think I understand where he’s gone wrong. He thinks that if Torricelli resigns, that creates a vacancy that extends beyond January of 2003. But it doesn’t. Remember — even though Torricelli’s withdrawn, there’s still an election in November, and whoever wins it will be New Jersey’s Senator in January of 2003. That won’t be Torricelli if he’s off the ballot, but that doesn’t make the seat vacant. Torricelli’s term expires this year, and nothing that the New Jersey legislature does can make the term last any longer. When it’s over, it’s over.
If Torricelli won the election and then resigned, the Governor could appoint someone to fill the slot until the next general election. But he’ d have to win, and then it would be the next seat, after the election, that would be vacant. New Jersey can’t take away Forrester’s right to run for the Senate, and take office if he wins, just because Torricelli decides to resign. But that’s what Hesiod seems to think the law does. For the Carnahan analogy to work, Torricelli has to be elected and then resign — or die when it’s too late to take his name off the ballot, and be elected anyway, which is what happened with Carnahan. Or else I’m still misunderstanding him, which is entirely possible. But right now the issue isn’t filling a vacant seat: it’s whether the Dems can fill a vacant spot on the ballot after the deadline for doing so has passed. If they fail to do so, there still won’t be a vacancy next year — it’ll just be filled by Forrester. But there’s no way for the Democrats to avoid an election next month — though presumably if they could get someone both named as a replacement (if they could get Torricelli to resign) and put on the ballot, that person would be more competitive.
ANOTHER UPDATE: Jay Caruso has a post on this, too. So does Deinonychus antirrhopus who apparently shares Hesiod’s passion for Greek blognames.
ANOTHER UPDATE: Mickey Kaus, on the other hand, seems to agree with Hesiod. But I think that the whole “vacancy-filling” argument based on the 17th Amendment fails when you realize that there is no “vacancy” in the next Senate term even if Torricelli resigns now — because there will be an election that will fill that seat in November, meaning that it will never be vacant. (Later: Kaus has updated — the email from the New York Times is delightful.)
YET ANOTHER UPDATE: Eugene Volokh is echoing my analysis here. Also, I did poke around on Westlaw and couldn’t find a case in which a governor was able to cancel a Senate election under these circumstances.
POSITIVELY THE LAST UPDATE ON THIS POST: The Green Papers has a lengthy piece on this. Actually, more than one — follow the links.
ONE MORE UPDATE: Jonathan Adler writes in The Corner that the Democrats may have an argument under New Jersey law — though I don’t see that this answers the “vacancy” issue above.
ANOTHER UPDATE: Robert Prather is suggesting that now would be a good time for Zell Miller to switch parties. I don’t think it’s going to happen, but you can read Prather’s post and decide for yourself. And Porphyrogenitus has a long post on the political maneuverings involved, of which he doesn’t think much. And fellow prof-blogger Jacob T. Levy has some thoughts that are worth reading. I like his conclusion.
ANOTHER UPDATE: Here are more thoughts from Robert Musil and The Indepundit says that Hesiod is in “full Florida mode.”
And Eugene Volokh has more too. Scroll both up and down from this post for additional information, including a discussion of whether some New Jersey Supreme Court Justices should recuse themselves because they donated to Torricelli.
Oh, and I just noticed this post from Patrick Ruffini and this one from Josh Marshall.
Here’s the latest from Taegan Goddard’s Political Wire. And how could I have missed James Lileks’ take on the situation?
If the law is upheld, then “democracy” is thwarted. Really? There will be an election with a ballot whose names are the ones chosen by voters in the primary. Sounds “democratic” to me. After all, Toricelli didn’t quit because he discovered an eight-pound neoplasm in his small intestine, or had his brain turned into a fine red mist when a marble-sized meteorite from the Oort cloud struck him in a 7-11 parking lot. He’s not even under indictment. He resigned because there was such a bad odor coming from him and his campaign that actual wavy cartoon stink lines were coming off him, and the cameras were starting to pick it up. He was going to lose. So he quit.
“Actual wavy cartoon stink lines.” You gotta love that, because it’s dead-on accurate.
Deroy Murdock has a column.
THIS REALLY IS THE LAST UPDATE: The New Jersey Supreme Court has decided, the Indepundit is dissing Hesiod and all the updates on the post-decision reactions are here.