The Illinois supreme court rejects AG Lisa Madigan's attempt to oust Blagojevich -- without comment.

Ouch!

She so deserved that thwarting.

***

Click on my Madigan v. Blagojevich tag if you want any details on why I thought Madigan's attempt to oust Blagojevich was terrible law and terrible politics. For now, I'll just say: Great! I'm glad she lost, and I'm glad she got slammed down decisively.

It's me and Jack Balkin on Bloggingheads!

Check it out. Balkin is the Yale lawprof who blogs at Balkinization.

They've titled this one "Qualifications and Disqualifications." We recorded this one on December 11th, so the first segment doesn't go as deeply as I'd like into the subject represented by my tag "Madigan vs. Blagojevich" (which you can click on below), but most of the stuff isn't so time-sensitive, and I'm sure, at the very least, you'll want to play the segment they've called "Ann says we need an atheist President who pretends to be devout."

ADDED: In this really short clip -- 22 seconds -- Balkin is asserting that Bill Clinton is deeply religious -- and a sinner -- and I unwittingly bite my lip Clintonesquely.

Let's read AG Lisa Madigan's brief against Governor Blagojevich.

Here's the PDF of the brief filed with the Illinois Supreme Court. As explained in previous posts, Madigan's attempt to oust the Illinois governor relies 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.

Madigan needs to establish that Blagojevich's political and legal troubles amount to an "other disability" within the meaning of that text.

The legal argument in the brief is embarrassingly inadequate, quoting the dictionary meaning of "disabled" and saying over and over again that the meaning is "plain" and the "plain meaning" governs. (If I could do a word search on that PDF, I'd count the number of times the word "plain" is repeated. Just for a laugh.)

And that's the extent of the argument about the meaning of the constitutional text.

Madigan sweeps aside a quote from the debate about the provision that shows the framers intended "other disability" to refer to "physical or mental capacity." And she says nothing about the procedural safeguards of the impeachment process or the reasons why courts should or should not involve themselves in political questions.

ADDED: Beldar -- who links here -- says:

Even though it would remove the reins of power from the hands of a crook, using the "disability" provision of the Illinois constitution in lieu of impeachment would be legally, politically, and intellectually illegitimate....

That Blagojevich is a banal, petty crook has been "obvious" to anyone who cared to see such things long before he was indicted and arrested. Under a practical, common-sense standard, that should have been obvious to the voters of Illinois who nevertheless elected and then re-elected him.

But elections have consequences. Among them is the fact that once a crook is elected, constitutional niceties must be observed to remedy the situation.

Exactly! Of course, Beldar also thinks Blagojevich ought to resign, and I certainly agree. And he has a lot more than that to say, which you ought to go over and read. He's critical not just of Madigan and Blagojevich, but also of the legislators and the voters in Illinois who -- as the saying goes -- "got the government they deserve."

I also really liked this comment by Chicago Sun-Times columnist Mary Mitchell, on this morning's "Meet the Press," on the difference between what Blagojevich is accused of and the sort of trading favors that happens all the time in politics:

Reality check. Pay to play, everybody knows it, even--not just in politics. Office politics, pay to play. You know, if you know the boss and the -- and you, you, you need something from the boss, he's going to look around and find the person going to do him the most good. He's not going to hire -- you know, put somebody in a place of power that isn't doing him any good. That's the world. That's how the world works. But there is a line. You got to know how to play the game. And Blagojevich, Governor Blagojevich was tacky in playing the game. That's what people are upset about. They're embarrassed that this man had the nerve to get caught on the wiretap using foul language, actually giving voice to, you know, the wink and the nod thing. He didn't just wink and nod, he actually tried to shake people down, according to the wiretaps.

Governor Blagojevich was tacky in playing the game. And he got recorded saying dirty words.

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!

"I wonder if that family of ticks in my yard knows that they're going to change the Tennessee state Constitution as a result of their actions."

I was just about to create an "Insects and the Law" tag... and I was getting some big ideas about teaching an Insects and the Law course at the law school. (You know about my longstanding interest in insect politics.) But then I thought: Hey, wait a minute. Ticks are not insects. And all my grandiose ideas came crashing down at 6:44 a.m.

I confirmed my suspicion by consulting Tikipedia. Arachnid! Will there be enough posts to justify an "Arachnids and the Law" tag? The thing about tags is that you don't want them to be too small, but they shouldn't get too big either. Something that will have 5 to 35 posts -- that's the target zone. I'm thinking Arthropods and the Law. And then just a plain old arachnids tag.

Anyway, the quote in the title is from this news article, which is linked by Glenn Reynolds, in a post about -- naturally -- the Blagojevich controversy.

(We need a cute name for the Blagomess. Blagosmear? Not Blagogate. The opportunities are too ripe to squander on another "-gate." Blag-oh-no.)

Glenn agrees with me about the interpretation of the provision of the Illinois constitution that the state attorney general, Lisa Madigan, is trying to use to push Governor Blagojevich aside without the troublesome safeguards of the impeachment process. Glenn worked on an amendment to the Tennessee constitution that is analogous to the provision Madigan has seized upon in what I consider to be an illicit power grab.

The Tennessee amendment was the consequence of a tick bite: Governor Phil Bredesen got quite sick after an arachnid attack, and it was decided that there needed to be a procedure to transfer power in case the governor becomes incapacitated.

There's also a provision in the United States Constitution, Section 4 of the 25th Amendment:

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.

You may remember the dramatic moment in the movie "Air Force One" -- spoiler alert -- when Secretary of Defense Dean Stockwell tries to use the 25th Amendment to oust President Harrison Ford, and Vice President Glenn Close refuses to sign.

Now, I've finally gotten Glenn Reynolds and Glenn Close together in one post -- with ticks. I think that says something about my authority to say that these constitutional provisions are about dealing with physical incapacity -- including unconsciousness and brain damage -- not with political and legal problems, however severe.

Impeachment has important procedural safeguards that should not be bypassed, and the importance of the protections of constitutional process is not diminished by an opinion that the executive in question is a blood-sucking tick.

IN THE COMMENTS: BlogDog coins "Blago-a-gogo."

Using the courts to oust Blagojevich on the theory that he's "disabled" from serving as governor.

Illinois AG Lisa Madigan makes the move to oust Blagojevich that we were talking about yesterday.

Madigan said that she took the action with the Supreme Court because she thinks that this is a faster way to strip Blagojevich of his power than through impeachment, which could take several weeks.

"I recognize that this is an extraordinary request, but these are extraordinary circumstances," Madigan said at a news conference.

Oh, the irony! Grabbing power to oust someone for grabbing power. As noted in yesterday's post, Madigan is relying on this language in the state 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.

Madigan has to argue that Blago's troubles amount to "other disability." Given that "conviction on impeachment" is one of the specified reasons for inability to serve, using this procedure as an alternative to the impeachment process looks like an abusive power grab.

It is the first time in Illinois history that such an action was taken. The attorney general is applying a rule that was intended to cover cases where a governor is incapacitated for health reasons. Her motion indicates that his inability to serve because of the scandal is akin to a debilitating health issue.

Much as I am willing to believe Blago is unfit for office, I think it's obvious that Madigan's effort should fail. Does anyone in Illinois government know how to use power appropriately?

The decision to go to the state's highest court was not welcomed by everyone. Democratic Rep. Jack Franks said it would set "a dangerous precedent" for the court to remove a governor as Madigan proposes. Franks, a fierce Blagojevich critic, said that kind of decision should be left to the General Assembly.

Franks is right. Now, get on the task.

ADDED: I react to the oral argument before the state supreme court.

How to oust Blagojevich from office if he won't resign and the legislation won't impeach him.

There's this:

"I have the opportunity to go to our Illinois Supreme Court and ask them to declare our governor is unable to serve and put in our lieutenant governor as acting governor," [Illinois Attorney General Lisa] Madigan, a longtime Blagojevich foe who is considering a run for governor in 2010, told CNN.

What legal procedure is this exactly? I can see that the Illinois Constitution provides, in Article V, Section 6:

(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.

Does this mean the AG can oust the Governor over the kinds of matters that would also be grounds for impeachment? Is his arrest an "other disability"? That seems to be Madigan's theory according the Chicago Tribune:

The Illinois Constitution is vague enough that she could argue the governor's corruption charges are enough to be considered a "disability" — a condition typically associated with physical or mental issues.

... Another portion of the Constitution opens the door to considering whether Blagojevich is "seriously impeded in the exercise of his powers." The argument again is that the taint of the allegations—that the governor sought to trade official state actions for personal gain—means he can't govern.

The "seriously impeded" language is plainly left to the Governor's own judgment about himself. So I think Madigan is limited to characterizing the ongoing prosecution as a "disability" -- and convincing the court that this is appropriate.

The Tribune continues: "Would Madigan go to court so her father, House Speaker Michael Madigan, can avoid a messy impeachment?" That makes the idea of end-running impeachment look quite a bit worse.

UPDATE: Madigan files the case.

ANOTHER UPDATE: On the oral argument to the state court.