December 13, 2008

AG Lisa Madigan's argument to the Illinois Supreme Court about ousting Governor Blagojevich.

Here's the transcript. [ADDED NOTE: This is only the press conference, not the argument before the court.]

As described here and here, Madigan is relying on Article V, Section 6 of the Illinois constitution: "If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed." So she needs to argue that Blagojevich is disabled within the meaning of that text.

Here's the discussion from the transcript:
Q Did you give any consideration to the intent of -- the intent of the law as framed by the constitutional convention, whether it was meant for a political or legal crisis like this or simply for some kind of, you know, medical or emotional issue?

MS. MADIGAN: I think the question you're getting at is, how is disability or is disability defined correct? And so yes, we did. It's addressed in our briefs.

We would look to the fact that the term disability legally is very broad, that it is not simply isolated to a physical or mental disability. And you can read all about that in our pleadings.

Yes.
There's no follow-up on that.

Madigan is asked about whether this case would "set a dangerous precedent" -- and she seems not to understand the concept:
Q General, is there a way to prevent other people, whoever might be AG in the future, from -- any protections to prevent others from using this law -- since this is the first time to have a governor sort of declared disabled -- to sort of have it be done sort of when the circumstances might not be as extraordinary? Are those protections there, or could this be filed at any -- could this...

MS. MADIGAN: I'm still not understanding your question.

Q Are there enough protections in place to stop someone from doing what you're doing in the future?

Q For political ends.

Q From abusing the --

MS. MADIGAN: Oh, I'm sorry.

Q (Off mike) -- abusing the AG authority.

MS. MADIGAN: Yes. And here's one of the protections, as I mentioned. The Illinois Supreme Court has total discretion as to whether or not to even hear this matter. So the Illinois Supreme Court, Judicial Branch, serves as a check on the executive branch in the circumstance.
So the safeguard against the AG's abuse of power is that the court will have the role of deciding? How can it be the court's role to make the final call about things that belong in the realm of impeachment? Why do constitutions put impeachment trials in legislatures? Because courts are ill-suited to such decision-making.

Consider this discussion, from the U.S. Supreme Court, about why the Framers of the United States Constitution gave the Senate the sole power to try impeachments:
The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to Try all Impeachments." Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature--the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.
In the Illinois case, you don't even have a legislative impeachment. You have a lower executive branch official, the Attorney General, bringing the accusation, and the state supreme court is asked to make the final call, deciding by fiat that a democratically elected Governor should be thrown out of office.

Now, there is that state constitutional provision -- Article V, Section 6 -- but the question is how broadly to interpret "other disability," a term that appears on a list that includes "conviction on impeachment." Clearly, "other disability" ought to be defined narrowly so that it does not obliterate the safeguards of the impeachment process.

At the end of the oral argument, the court flat-out confronts Madigan Madigan is confronted about her own political ambitions and conflict of interest:
Q I know you say that you haven't been thinking about politics at all, but there have obviously been a lot of questions about politics, and there wouldn't be questions about politics unless your political future was considered very bright and in play here. Given the fact of your possible interest in being governor, given the fact that you've been mentioned as a possible Senate replacement for Barack Obama, was any consideration given to your removing yourself from this issue because of a possible perception, if not reality, of conflict of interest?

MS. MADIGAN: No. And let me make two further statements. One is I never expressed any interest in even being considered for the U.S. Senate vacancy. I never contacted or talked to any -- the governor or anybody in the governor's office about that.

In addition, I am supporting putting the lieutenant governor in to serve as at governor of the state of Illinois. I think that is in the best interests of the people of this state. And I am happy to serve as the attorney general of this state. And I will continue in that role to do what is best for the people of this state.
Well, the answer is meaningless. The question says it all.

AND: Keep in mind that the legislative impeachment process is something under the control of Madigan's own father. The court asked her Madigan was asked "Do you know why your father has been appearing to be somewhat reticent on the -- (off mike)?" She told them to "ask him," which, the transcript notes, provoked laughter. Do you think that's funny?

Here's a Sun-Times article headlined "Why is Michael Madigan waiting to impeach Blagojevich?"
House Speaker Michael Madigan turned heads last spring by admitting his staff had researched impeaching Gov. Blagojevich, then followed up with a fall memo to Democratic candidates advocating impeachment.

So why on the eve of lawmakers returning to Springfield to address a full-blown political crisis won't the powerful Southwest Side Democrat commit to impeaching a man regarded by some as the most corrupt state officeholder in modern Illinois history?...
Even more baffling is the fact that plenty of votes exist in the House to get the job done.

On Friday, Cross had a conference call with his 52-member GOP delegation and said "at least" 45 favored launching impeachment proceedings immediately....

If Blagojevich resigns this week, Madigan's noncommittal stance on adding impeachment to the agenda would make perfect sense because the issue would be moot.

But if Blagojevich stays put and his saga drags out, then questions inevitably will grow louder about whether delaying impeachment is a tactic by Madigan not to divert political thunder from his daughter, Attorney General Lisa Madigan....

"The speculation is that the speaker is sitting back on this so Lisa can take the lead and get ownership on the issue," said one House member who favors impeachment but requested anonymity.
What a misguided notion of how to win glory!

55 comments:

Meade said...

Shouldn't Lisa Madigan just resign before she herself gets stuck to this Tar Blago?

Did Elliot Richardson try to oust Nixon after Nixon fired Archibald Cox? I don't think so.

Did Janet Reno step in when the presidential DNA showed up on the famous blue dress? I don't think so.

Have all Illinoians lost their minds?

rhhardin said...

Dueling used to remove some of the idiots from the action.

Ann Althouse said...

Under the 25th Amendment, it's the Cabinet and the Vice President who have to move against the President.

Gore should have ousted Clinton while the Senate was dithering over the impeachment. He'd be President today if he had (or would have have come in too early to get a second full term?).

And then what would have happened to the planet? All this time, Gore would have been fighting al Qaeda and overthrowing Saddam instead of thinking about thermometers.

Ann Althouse said...

"Dueling used to remove some of the idiots from the action."

You noticed my Alexander Hamilton quote.

rhhardin said...

You want impeachment in the legislative branch just so that the executive can step outside the law.

The courts would have to convict, but the legislature can consider whether it wants to.

That in turn allows the executive to deal with the unexpected using common sense.

rhhardin said...

Dueling is not simple.

One still has to consider ``arranging the time and place of the duel, the guest list, the selection of weapons and number of paces, dress options, and the decision regarding when to let the attending physician set up his instruments on the field.''

Slights must be avoided, lest the media try to make something out of them.

John Salmon said...

Who would duel with Blago?

Rahm Emanuel?

Given Blogo's command of the language, it might be F-bombs at 20paces.

SNAKE HUNTERS said...

ILLINOIS VOTERS Invite Chicago's

Snake-Oil Peddlers To Shape Their

Destiny, Then Howl At The Moon,

When Governance Unravels!

>

Cry Me A River. reb
______________________________
www.lazyonebenn.blogspot.com

reader_iam said...

I want to slap her.

reader_iam said...

I think the question you're getting at is, how is disability or is disability defined correct? And so yes, we did. It's addressed in our briefs.

Where the hell are Troop and Bissage when you need them?

John Stodder said...

Inability to recognize that something they want to do sets a precedent for their foe to do the same thing to them at a later date is a failure of imagination that comes up more and more in our politics, especially from Democrats.

How many federal judicial appointments is Obama going to get to make? They'll be treated with the same deference the Dems showed Bush. Meaning, very little. Democrats and the media will scream, and they won't understand that they're only being asked to live by the same standard they set themselves.

So it is very suggestive that when the court first hits Madigan with the notion that the power she's trying to grab might be abused in the future, she's as confused as if she's been asked what happens when a pony mates with a unicorn.

Reading this post, I have now changed sides. Blagojevich is a crooked buffoon. But Madigan is dangerous. Impeach her first.

Der Hahn said...

The speculation is that the speaker is sitting back on this so Lisa can take the lead and get ownership on the issue," said one House member who favors impeachment but requested anonymity.

Doubtful. I assume actual impeachment would involve some sort of trial. That would give Blago time and platform to take more than a few of these jokers down with him.

If he can be forced out they can keep him quiet.

Palladian said...

Best dueling scene ever.

Unfortunately it can't be metaphorically applied to the current Illinois situation since in this scene, for the first time in his life, Barry Lyndon displays honor and honor is a quality permanently out of reach for Illinois politicians.

BJM said...

Althouse: What a misguided notion of how to win glory!

Glory? About as much as stepping on a cockroach in a landfill.

The Blago mess will taint everyone who touches it, even in Chicago where taint is considered normal.

Issob Morocco said...

Madigan's and both the Illinois and National Democratic parties' disability is their sudden inability to conduct business as usual. It is a political disability not a functional one. State Prisons are still staffed, troopers hang out south of Wisco to catch motorists escaping from there. DFCS is still conducting its duties to protect children.

Squire Madigan was huffing and puffing impeachment this summer against Blago. He could have pulled the trigger then and now there is much more reason to do so, versus budgetary shenanigans back then. Yet he won't, as Jimmy DeLeo knows that would create a messy situation in the public eye.

Veruca Salt Madigan is merely carrying water for the powers that be. Her not understanding the abuse of power is not feigned, as those of the political class in Illinois are not used to not getting what they want and how they want it.

Not all Illinois residents have lost their minds, but enough have not minds or understanding to see that by voting for those who your commiteeman or alderman or union local leader say you should, lead to what is firmly entrenched in the Land of Corruption and soon to appear on a National and International tour with the One and the Only Barack Hussein Obama!

Veruca Salt Madigan will prevail, the Illinois Supreme Court will act as they are told and the matter will migrate to federal courts as Blago holds on for dear life. Blago is dug in like a certain denizen of Berlin back in March of 1945. Buckle up and throw away common sense and logic. This is Illinois politics.

Christmas Cheers!

Simon said...

I respectfully dissent.

Madigan says that "[w]e would look to the fact that the term disability legally is very broad, that it is not simply isolated to a physical or mental disability." She's right. The fourth edition of Black's, released barely two years before the Illinois Constitution was framed, confirms this point: "disability" is "the want of legal capability to perform an act" (the definition in Black's second edition, from 1910, is clearer and clearly ofa piece: "[t]he want of legal ability or capacity to exercise legal rights").

I understand Althouse's theory about institutional competence and the concern to give full effect to both the disability and the impeachment clauses, but I don't think they work here. Disability is a situation that can often be be cured, and the language of section six recognizes that fact, authorizing another person to then act "until the disability is removed." Here, as I understand it, the AG is not asking the court to remove Blagojevich, she is asking the court to declare that a disability presently exists and that another person will act as AG while he is, so to speak, "suspended." The danger of suspension encroaching into the impeachment power strikes me as remote, and it's far from "[c]lear[]" to me that it's necessary to define "'other disability' ... narrowly so that it does not obliterate the safeguards of the impeachment process."

That a more permanent remedy - impeachment - may be pursued during the period in which Blagojevich is suspended is irrelevant, as I see it. And the suspension may in any event make impeachment unnecessary: if the grand jury looks at the evidence, throws out the complaint, and this whole mess turns out to be prosecutorial overreach (unlikely, I admit), Blagojevich can simply return to office. So it's not clear to me that Althouse is correct that this is a "thing[] that belong[s] in the realm of impeachment," either.

Althouse worries about setting bad precedents, so we should consider the other side of the scale: why isn't a bad precedent set the other way, too? As I read the post, Althouse isn't just saying that the governor's present condition doesn't rise to disability (we agree on that), she's saying that the antecedent question of whether the court can oust the governor temporarily assuming that they really were disabled should be answered in the negative. That can't be right. If the court decided that it can't temporarily oust the Governor during a period of disability, at the AG's request, what alternative mechanism is there to give effect to the temporary disability ouster in the future?

To sum up, then. As I read it, Article V § 6 of the Illinois constitution provides for both permanent and temporary removal: Permanent through the impeachment power at the discretion of the legislature, and temporary in the eventuality that the Governor is disabled. the latter provision allows the continuing function of state government, but contrasts with the impeachment power in three ways: it can and often will be temporary; the process through which it is invoked and used is undefined; and the triggering criterion involves a question of legal judgment: what is a "disability" in that context. With this in mind, it strikes me as entirely appropriate -- and within the institutional competence of the Illinois supreme Court, see, e.g., Michael Wells, Naked Politics, Federal Courts Law, and the Canon of Acceptable Arguments, 62 Emory L.J. 89, 98 (1998) ("[t]he court which can finally resolve an issue is 'competent' in a way that other courts are not. Competence also refers to judgments as to which institution is better suited in terms of ability and experience to do a good job with a particular issue") -- for the court to give content to "disability," to decide whether one exists vel non, and to issue appropriate writes suspending the governor if one does.

Simon said...

Sorry for the typos, in above comment, I'm typing around a cat.

Michael_H said...

Good thing for Gov Blogo that he's not a terrorist being held at Gitmo. Otherwise, he'd have all those pesky lawyers going all crazy about his rights and things.

Since it's just Illinois, fuck it, he's guilty, kick him out and string him up without a trial. He has tainted the Obama administration, so due process is voided.

sg said...

Althouse:

I could be wrong, but isn't the transcript of AG Madigan's press conference--not of an appearance before the Illinois SC?

If I read it correctly, all she's done now is file motions for leave to submit a full complaint and a temporary restraining order. As Madigan points out, the SC has discretion to refuse to hear the dispute at all.

That having been said, I like your analysis.

Meade said...

Getting off topic here for a second but
@ 12:01 Ann Althouse said...

"And then what would have happened to the planet? All this time, Gore would have been fighting al Qaeda and overthrowing Saddam instead of thinking about thermometers."

I've been thinking about that and just want to say: thank you, Founders; thank you, Fate; thank you... eventually, George W. Bush.

weffiewonj said...

Woops! SG is right. This is a press conference.
Madigan goes circular with this argument, though: Short term bonds "require[] me to sign a certificate certifying that I am not aware of any proceeding or threatened litigation challenging the authority of the governor to hold his office. And so I at this point would not necessarily be able to sign that"
BECAUSE I (and I alone) AM FILING AN ACTION CHALLENGING HIS AUTHORITY. Well, in that case, he must be disabled.

Jim said...

I believe the goal is to get Blago out as soon as possible so as to elevate Lt. Gov. Quinn to the top spot so he can name Obama's senate successor. The longer this drags out, the more likely there'll be a call for a special election- an election the Dems might lose.

Michael Sweeney said...

To state the not so obvious, the Madigans are hoping and praying to have somebody else, anybody else, get rid of Hot Rod so it doesn't come to an impeachment trial. Why? Because trials have a nasty way of becoming public, and there are lots of skeletons in the Madigan closets, and lots of other closets in Illinois, that could come tumbling out.

All these people are joined at the hip with Hot Rod, as is a certain junior senator from Illinois.

Cloudesley Shovell said...

The IL Supreme Court, if it has any respect for itself, will deny this petition by Monday. What an embarrassing argument.

Iapetus said...

When lawyers and judges get to parsing words, common sense goes off to the land fill. Gov. Blagojevich has lost the respect of people, who may no longer care to see him in office or to accept his authority, but he s not "disabled". Period. AG Madigan's attempted legalistic coup d'etat should be turned aside by the Illinois Supreme Court, being seen for what it really is: a grab for power. This is another example of what happens when an overzealous prosecutor decides that the ends justify the means. Don't they teach respect for the law in law schools these days?

AST said...

I seem to recall from somewhere the phrase, hard cases make bad law.

Under the circumstances, I have to sympathize with Ms. Madigan. It reminds me of the years I spent as a public defender trying to come up with a dignified way of presenting a patently absurd argument to get my client off, as he stands beside me, decked out in dredlocks and sporting a marijuana leaf tattoo on one arm and a black widow spider on the other.

However, I think she should have told her father to go bleep himself.

Zeb Quinn said...

I seem to recall from somewhere the phrase, hard cases make bad law.

I've been hearing that for 30 years. Can someone point out a bad law which came from a hard case?

What actually happens is hard cases make for unsatisfying results in those cases.

Ann Althouse said...

sg said..."I could be wrong, but isn't the transcript of AG Madigan's press conference--not of an appearance before the Illinois SC?"

Yes, you are right, and I've made appropriate corrections in the original post.

Now, I can hope that the judges crush her at oral argument, as she richly deserves.

Issob Morocco said...

Word from Springfield is that Lt. Gov. Pat Quinn has activated the State Militia and through his orders they are surrounding the State Capitol and the Governor's Mansion. He is now acting to remove all of Governor Blago's Department Heads and replacing them with his appointments due to the current political disability affecting Illinois politicians.

Ann Althouse said...

Simon, sorry, but I think your legal and political instincts are all wrong here.

Issob Morocco said...

Bet on the Illinois Supreme court backing Veruca Salt Madigan.

Simon said...

Ann Althouse said...
"Simon, sorry, but I think your legal and political instincts are all wrong here."

Well, the common ground is that we can surely both agree that this claim shouldn't prevail, because whatever other issues are in play, this situation doesn't count as a disability. When I suggested on Tuesday morning that § 6 might operate to temporarily divest Blago of office, my understanding was that he was actually incarcerated. That, would count as a disability, in my view, but merely having a complaint pending against him doesn't disable Blago from acting as governor by any reasonable construction of that language. In other circumstances, I think this action could be valid, but for now, given the situation as it stands, we can agree that the appropriate way to go forward is impeachment.

Badger 6 said...

If Illinois was a South American, Asian, or African nation what is going on in Illinois vis a vis Lisa Madigan it would be considered a potential or attempted coup.

The current governor is just another corrupt pol among a bunch of corrupt pols. There is a system in place to get rid of him, use it.

Confidence in government is undermined not when we find out that we have bad apples in the system; confidence is undermined when we change the rules as we go along.

There seems to be a great deal of that going on these days.

NotSoFast said...

"At the end of the oral argument, the court flat-out confronts Madigan Madigan is confronted about her own political ambitions and conflict of interest:

Q I know you say that you haven't been thinking about politics at all, but there have obviously been a lot of questions about politics, and there wouldn't be questions about politics unless your political future was considered very bright and in play here. Given the fact of your possible interest in being governor, given the fact that you've been mentioned as a possible Senate replacement for Barack Obama, was any consideration given to your removing yourself from this issue because of a possible perception, if not reality, of conflict of interest?

MS. MADIGAN: No. And let me make two further statements. One is I never expressed any interest in even being considered for the U.S. Senate vacancy. I never contacted or talked to any -- the governor or anybody in the governor's office about that.

In addition, I am supporting putting the lieutenant governor in to serve as at governor of the state of Illinois. I think that is in the best interests of the people of this state. And I am happy to serve as the attorney general of this state. And I will continue in that role to do what is best for the people of this state.

Well, the answer is meaningless. The question says it all."

The answer is not meaningless. And it is true. The only evidence that Madigan was interested in the Senate seat is a Chicago Sun-Times piece, on November 7th, by Michael Sneed. Here is what it said:

"TIPSVILLE . . .

The latest from Blagoville: Is Gov. Rod Blagojevich toying with tossing Barack Obama's U.S. Senate seat to Illinois Attorney General Lisa Madigan, who wants Blago's job?

- It's his pick . . . and it would get rid of a rival.

- It may endear him to powerful House Speaker Mike Madigan, Lisa's dad, who is Blago's political foe.

- It would enable Gov. Blago to choose a new Illinois attorney general.

- Hmmm: Even though this sounds like looneyville . . . stay tuned.

[http://tinyurl.com/6rn4vk]

Of course, if you believe that, you are believing no one but the liar Blagojevich. Fitzgerald's complaint against Blagojevich (in which Madigan was "Candidate 2") made clear that Blagojevich had planted the whole story with Sneed, in order "to send a message" to Obama's people that they had better put up or shut up! Here is the relevant portion of the complaint:

On November 6, 2008, ROD BLAGOJEVICH talked with Spokesman. ROD BLAGOJEVICH told Spokesman to leak to a particular columnist for the Chicago Sun-Times, that Senate Candidate 2 is in the running for the vacant Senate seat. According to ROD BLAGOJEVICH, by doing this, he wanted "to send a message to the [President-elect's] people," but did not want it known that the message was from ROD BLAGOJEVICH.

Thereafter, ROD BLAGOJEVICH and Spokesman discussed specific language that should be used in the Sun Times column and arguments as to why Senate Candidate 2 made sense for the vacant Senate seat. A review of this particular Sun Times column on November 7, 2008, indicates references to the specific language and arguments regarding Senate Candidate 2 as a potential candidate for the Senate seat, as discussed by ROD BLAGOJEVICH and Spokesman.

That Madigan is petitioning to have Blagojevich removed from office is not surprising. She has been working with Fitzgerald for over three years to bring the thuggish Illinois governor to justice. Here, for example, is an old blog post from the ever helpful Capitol Fax:
> [http://tinyurl.com/5m77lh]

Blagojevich, for his part, has been working just as hard to thwart Madigan. Blagojevich line-item vetoed 25% of Madigan's Attorney General budget this past year (even though the OAG is one of the highest, if not the highest, revenue-producing bureau of the state when it is able to operate on a full budget); as the Illinois papers reported, that cut was clearly done for political reasons. Blagojevich is even reported to have hired a person to oversee the Attorney General's security team so he could get copies of her schedule and keep tabs on her, forcing her to keep her daily schedule private.

The kind of cynicism about motives manifest in this article belongs to the Blagojeviches of this world; it doesn't become Ann Althouse. Lisa Madigan has been a force for justice in this whole sordid business, and from all that I've heard, a force for good generally in the state of Illinois. I understand that she recently gave birth and wants to stay in Illinois. But I for one would cheer if she were appointed to fill Obama's seat, and if she were persuaded to accept it.

goyomarquez said...

According to Wikipedia it seems that Ms. Madigan doesn't have a law degree. So the people of Illinois elected a non lawyer to be their attorney General? Hmmm…frankly the people of Illinois seem to be getting exactly the type of government they desire.

10ksnooker said...

That someone who is on the list, is now trying to get the one who made the list, removed from the office that makes the decision of who on the list gets the seat, is curious at best.

Ann Althouse said...

Simon, you're emphasizing temporariness in a way that is completely unpersuasive. The text says "for the remainder of the term or until the disability is removed." He's ousted. How is he supposed to get back? When the court says he's not politically "disabled" anymore? That's a far cry from the sort of physical problems that might occur if the governor were going under anaesthesia or were in a coma. This is a stark new use of the clause to shunt aside someone because he has political and legal problems. That's not a specific condition with a beginning and an end. I can't believe that this provision was intended for problems like this that traditionally are handled with impeachment.

Seven Machos said...

Can someone point out a bad law which came from a hard case?

Bush v. Gore is a textbook example.

Seven Machos said...

P.S. -- Moreover, Althouse, as you have pointed out, the very problems that beset Blago are mentioned in the law. They are, therefore, not part of the "other" category. They cannot be.

This is a political question, black and white, easy to see. A slam dunk. The Illinois courts will get this right.

Simon, your arguments aren't persuasive. I can't believe that you even believe them.

reader_iam said...

A small question:

What public accommodation(s) must be made for the politically disabled?

Simon said...

Ann - the upshot of § 6(d) and the Illinois Supreme Court's rule 382 would seem to be that he begins the process of getting back in the same manner that he's temporarily removed: by filing a motion with the Illinois Supreme Court.

As I said above, at least twice, I agree with you that this situation is not a disability, and this case should fail. What I'm defending is the involvement of the courts in enforcing this clause in some circumstances, circumstances that don't include this one. That is contemplated by §6(d) (if the legislature fails to provide a process for determining and deciding questions of disability, the question defaults to the supreme court, which is given in that circumstance "original and exclusive jurisdiction to ... make the determination under such rules as it may adopt"). And I'm doing so - not very well, perhaps - because your post, as I read it, is skeptical of this move in ways that go far beyond this highly questionable use of the power in the instant situation.

(As I've said before, by the way, I'm not a big beliver in giving weight to the intent of the framers. I don't think that the drafter's intent defines the perimeter of the rule. This most recently came up in the context of Hillary's nomination.)

Simon said...

What I'm saying is that I should perhaps have said that I concur in the judgment rather than dissenting, but it comes to the same thing, see Scalia, The Dissenting Opinion, 1994 J. Sup. Ct. Hist. 33.

Peter Blogdanovich said...

Rats leaving a sinking ship...no that's no it.

Lunatics in charge of the asylum...no.

A baby playing with a razor blade...closer.

Pot calling the kettle black...yea, that's it.

Eli Blake said...

"In Defense of Chicago Politics"

by Dan Rostenkowski.

Not the best source.

Lionheart said...

Simon - I understand your problems typing around a cat. I often operate the computer one-handed as 14 pounds of Ocicat require one arm to keep him stable. The good news: Gino the cat is a better conversationalist than many online.

Anonymous Blogger said...

This is a stark new use of the clause to shunt aside someone because he has political and legal problems. That's not a specific condition with a beginning and an end. I can't believe that this provision was intended for problems like this that traditionally are handled with impeachment.

Unfortunately the attorney general may not be removed by the Governor for incompetence and overstepping her authority. She may be removed only by impeachment. The Governor may remove only those officials he has the power to appoint. That alone suggests the attorney general's position is flawed; that the Governor, but not any other elected Executive branch official, would be subject to removal for neglect of duty is an incoherent position. ("The Governor may remove for incompetence, neglect of
duty, or malfeasance in office any officer who may be appointed by the Governor.")


Ann - the upshot of § 6(d) and the Illinois Supreme Court's rule 382 would seem to be that he begins the process of getting back in the same manner that he's temporarily removed: by filing a motion with the Illinois Supreme Court.

The relevant section of the Constitution of the State of Illinois is as follows:

SECTION 6. GUBERNATORIAL SUCCESSION
(a) In the event of a vacancy, the order of succession to the office of Governor or to the position of Acting Governor shall be the Lieutenant Governor, the elected Attorney General, the elected Secretary of State, and then as provided by law.
(b) If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.
(c) Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by
notifying the Secretary of State and the Acting Governor.

(d) The General Assembly by law shall specify by whom and by what procedures the ability of the Governor to serve or to resume office may be questioned and determined. The Supreme Court shall have original and exclusive jurisdiction to review such a law and any such determination and, in the absence of such a law, shall make the determination under such rules as it may adopt.


The attorney general is plainly incorrect. The text of the Constitution of the State of Illinois makes clear that the Governor determines when he suffers from a disability and simply notifies the Secretary of State and the Acting Governor when he determines that he shall resume his powers. The purpose of vesting the determination in the elected Governor, I would argue, is that the concern is the ability of the Governor to carry out his duties. If the elected Governor is able, he serves for the remainder of his elected term. He has yet to determine he is unable. Furthermore, there is no contrary law by the General Assembly for the Supreme Court of Illinois to examine and, presumably, weigh against the Illinois Constitution. In the absence of such a law and any determination of unfitness by the Governor himself, he of necessity must be able to serve. In my opinion, the attorney general should be impeached for incompetence and malfeasance.

Anonymous Blogger said...

SECTION 8. GOVERNOR - SUPREME EXECUTIVE POWER
The Governor shall have the supreme executive power, and
shall be responsible for the faithful execution of the laws.


Under this provision, isn't the Attorney General violating the Illinois Constitution?

Issob Morocco said...

Not So Fast your paean to Veruca Salt Madigan (Daddy, I want to be Governor!!) rings a bit hollow. She is nothing more than a child of the Illinois Machine. See Stroger, Jones, Beavers, etal for this uniquely Illinois political nepotism. She is not doing anything that she is not being directed to do by the machine.

Also, I would question your assumption that our beloved Gov. Blago is a liar. What is the lie and what is the truth? That is what the court case will eventually decide but it seems that you have jumped to a guilty/liar conclusion already.

You sound like someone who takes orders from those who take orders from the Machine with your cheerleader like rah-rah for Veruca Salt Madigan and hence the machine. Go back and tell the machine, it is isn't playing well here.

Christmas Cheers!

NotSoFast said...

Issob Morocco:

More cynicism. I provided evidence for my position; you provide none, and resort to childish name-calling.

I don't assume Blagojevich is a liar. The portion of the complaint that I quoted makes it quite clear to anyone with a modicum of intelligence.


As for your accusation that I am taking orders from "the machine": I'm afraid that I have nothing to do with Chicago politics, my dear man. I teach at a small liberal arts college in a sleepy town in New York. But thanks for providing still more evidence of how deeply delusional cynicism like yours can be.

Issob Morocco said...

Not So Quick, er Fast, pray tell what was the name calling I did? You seem to be reading more than is written. Please enlighten me.

It does concern me that you teach others since you seem to have a lack of understanding of what is needed to discern fact from propaganda. You falsely accuse me of 'childish name calling', which is often the first defense of those who have no factual defense when questioned. Attack those who question.

What makes Veruca Salt Madigan a person of the people and a force for justice? Because you heard so? That is Dickensian Gruel for fact backing and reinforcing your argument. For that matter you still cannot define what Blago lied about. That is assuming on both fronts.

As someone who does reside and work in the Land of Corruption, and does know Chicago politics, and did not vote for either Veruca or Blago, let me guide you that your cries of cynicism are what is known here as realism. That is the Chicago way.

That is why I said you sound like someone who takes orders from those who take orders from the machine. I didn't say you did, just that you are doing what those folks do, provide cover for those in power so they can stay in power. I am glad to hear you are in Ithaca or some other wonderful city in New York and not in the Land of Corruption.

I hope you can accept my Christmas Cheers to you as not being cynical!!

Christmas Cheers!

Ann Althouse said...

Anonymous, the way I read that is that (b) and (c) are separate. Under (b) you've got a "disabled" governor and his position "shall be filled." Under (c) you've got the governor knowing that he faces time when he won't be able to serve and tells him how to step out of the job for a time -- such as if he knew he were going to be under anaesthesia during surgery. I think it's like the 25th Amendment to the U.S. Constitution, which has 2 procedures, one controlled by the Prez and one imposed on him:

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President


And then, in the state constitution, (d) says how the specifics will be determined, and that's where the state supreme court comes in. In the absence of law from the legislature, the constitution requires the court to figure out what to do. All the AG is doing is asking the court to perform the task created by (d).

Trochilus said...

It seems highly likely that the pols are rooting for Lisa Madigan to succeed with her action, for a variety of reasons. They at least want her effort to "force" Blago to quit.

But if you read the brief, you quickly realize how really weak her case is. Had there been a "follow-up" question (where you noted there was none) on the content of her brief, she would have had to refer to the commentary from the state constitutional convention, that at least suggests that there was no intention whatsoever to read the "unfit" language the way she is now urging. This is not just a "precedent" issue -- there is a much more important "original intent" issue involved, and in her brief she noted the commentary and tried to talk around it.

It was weak!

As far as Illinois officialdom goes, they obviously want Blago to just "go quietly go into that night" and pull the plug on himself.

The main reason is that very few, if any of them want an impeachment trial at all! They'd have to get a bill passed first, and he could sit on that for the requisite period of time before vetoing it and sending it back, forcing an over-ride.

And impeachment is way, way too messy . . . no idea what buried bombs might be suddenly be ignited and set off! Blago is a real loose cannon at this point -- as if he wasn't when they first elected him! And this is Illinois!

The point is, the trial would require the introduction of evidence. What are they going to use . . . Fitz's transcripts? Heh! Don't think so! Besides, you think Obama wants Emanuel's full "exchanges" on his behalf out there for the public to read? Ha!

But those transcripts are the best evidence, now aren't they?

Blago actually seems to be in a better position to stall than even he may realize.

There will be pressure on the federal prosecutors to "deal" with Blago, just to get him out cleanly -- in order to avoid all the inherent problems associated with an impeachment trial, and the aftermath.

So in that case, the United States Attorney would be in the position of "negotiating a deal" with a high elected state official, to induce him to relinquish his office voluntarily, in exchange for the prosecutor pulling the plug on at least some charges against him, all of which are related to that official's alleged negotiations over who he would be temporarily appointing to fill the seat of a high elected federal official!

And, the public will rightly want to know exactly what the "deal" was, in order to get Blago out.

What a fine mess! Fitz probably should have "negotiated" the deal to get the S.O.B. out before arresting him and flinging all the bombast around. It might have succeeded, and avoided the problems that now are out in the open.

NotSoFast said...

Trochilus:

Thanks for the many good points. On your conclusion: It's quite possible, and even likely, that Fitzgerald did make an attempt to negotiate something with Blagojevich, and was turned down. He may, for example, have offered not to press charges against Mrs. Blagojevich, unsuccessfully. We won't know for a while.

Trochilus said...

Earlier, I did not mean to say that in order to have an impeachment trial they have to pass a law first. I meant in order to alter change the appointment authority, they have to change the law, which would trigger the legislative process he would undoubtely use to delay the inevitable. That would put this whole issue into Obama's term.

But I do believe it is very clear that the attempt to remove him through this bogus "hybrid" process is related more to a widespread extreme reluctance, at least on the part of the Democrats, to enter into the impeachment process, and less related to the likelihood that "delaying impeachment is a tactic by [Michael] Madigan not to divert political thunder from his daughter, Attorney General Lisa Madigan...." even though there is no doubt that the appearance of a conflict certainly seems to exist on the surface level!

NotSoFast, you may be absolutely correct that Patrick Fitzgerald tried and failed to force him out . . . we'll likely not find out about that.

Perhaps his frustration, as expressed in some of his somewhat less that "PC" (Prosecutorially Correct) statements at the presser evidence that.

Here in New Jersey, as you may recall, we had a Governor suddenly resign under a cloud a few years back. Hardly seems like it's been 4 years!

Some had the feeling at the time that the resignation could have had more to do with the serious potential for a corruption charge(s), than to issues of his sexual preference.

For example, in June of 2004, the New York Times wrote about strong indications, based on a federal wiretap of a "code" word (Machiavelli) having been uttered by Governor McGreevey at a key meeting, one that supposedly signaled the participants of when a sleazy "deal" was reached. He admitted to saying the name, but denied it had anything to do with a corrupt deal. He said he frequently used the term.

Less than 2 months later, during that summer of 2004, McGreevey suddenly resigned because he was a "gay American."

NotSoFast said...

Issob Morocco,

Since you repeat the childish name-calling in this response ("Veruca Salt Madigan"), there's really no need to address your remarks on that score.

"What makes Veruca Salt Madigan a person of the people and a force for justice? Because you heard so? That is Dickensian Gruel for fact backing and reinforcing your argument. For that matter you still cannot define what Blago lied about. That is assuming on both fronts."

There are many reports in the press on the Illinois Attorney General's doings. I supplied a link to one source (Capital Fax: http://tinyurl.com/5m77lh) that I find particularly good. I see no refutation by you of anything in that source's report.

"As someone who does reside and work in the Land of Corruption, and does know Chicago politics, and did not vote for either Veruca or Blago, let me guide you that your cries of cynicism are what is known here as realism. That is the Chicago way."

Yes, yes. Cynics love to call themselves "realists." Trouble is, they are distorting reality, in their boastful claims to be nobody's fool; in their quick, corrosive reduction of all human actions to base, self-serving motives---everyone's that is, except their own; and in their sneering accusations, for which they are not held responsible. But one invariably finds at the root of their cynicism a deeply disappointed hope in a perfect world. More sensible people-the genuine realists--resign themselves to an imperfect world, and admire in it the good that is there to be admired.

"That is why I said you sound like someone who takes orders from those who take orders from the machine. I didn't say you did, just that you are doing what those folks do, provide cover for those in power so they can stay in power."

Actually, you said more: You told me to "go back and tell the machine..." You implied that I was somehow taking orders from "the machine." And you were wrong. (It was also a vile thing to say.)

As for the lie of Blagojevich that you still can't see, perhaps I can explain it to you. Blagojevich led the journalist Sneed to believe that Blagojevich was thinking of appointing Lisa Madigan to the U.S. Senate, for reasons spelled out in Sneed's piece. In fact, Blagojevich was lying to Sneed. What was told to Sneed and then reported by Sneed, was simply intended by Blagojevich to "send a message" to Obama's people, who wished to have Valerie Jarrett and others, but were prepared to offer only gratitude for her appointment. Do you understand a bit better now?