"Wary of ideas ..."

"...perpetually on guard against the ways in which abstract thinking (especially thinking about your own thinking) can draw you away from something more genuine and real..."

Was this a bad year for ideas?

The annual "year in ideas" issue of the NYT Magazine seems so much less interesting this year. Is it me? Is it the slideshow format? Or was there something about this past year? Do you think ideas are not the delicious, crisp morsels they once were?

Click image for animation.

It's Jacksonman.

Superhero/super villain.

"What if the law allowed everybody one non-injurious slap against everybody else?"

"There would be some rules. You can slap as many people as you want, but you get only one slap against any one person...."

Of course, this is wrong for so many reasons -- on so many levels -- but indulge the fantasy....

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!

If a burglar breaks into your house and even enters your sleeping child's room...

... I suppose you should be relieved that all he does is give the boy four quarters and a dollar to "go buy some soda"... and then steal your car, your Christmas presents, and your daughter's wheelchair.

Force Althouse to go to the movies.

You know I said the other day that "I don't enjoy going to the movies these days -- for about 6 reasons." Pushed about the reasons, I enumerated not just 6, but 8.

But I'm going to give you a chance to force me to go to the movies. Apply whatever standard you want -- what you think I'd like, what would lead to the best blog post, what would teach me a lesson I need to learn, what would punish me for my sins.... The choices on the poll are just the movies that are currently playing at Sundance, the Madison theater with the best aesthetic appeal -- notably: rectangular screens.

I'm assigning Althouse to see:
	"Slumdog Millionaire"
	"Milk"
	"Let the Right One In"
	"Australia"
	"Synecdoche, New York"
	"Rachel Getting Married"
pollcode.com free polls

UPDATE: "Slumdog Millionaire" won the poll, and accordingly, I saw "Slumdog Millionaire." I didn't know what this movie was about -- not the slightest thing -- so I was a little worried when it opened with a torture scene. I certainly didn't want to watch a man being tortured -- or even an actor pretending to be tortured. But the torture did not last long, and it set up a delightfully plotted story about 2 very different brothers, a beautiful girl, and a sprightly tale framed by a set of questions on the Indian version of the TV show "Who Wants to Be a Millionaire." We got heights and depths of ecstasy and despair and the best and worst of human nature -- not to mention the slums of Bombay and the Taj Mahal. Children suffer, but never too much (or at least not too long), and they never cry or lose their fundamental feistiness. Our hero Jamal is up for everything, because he trusts destiny, and he is ready to put up with whatever it takes, from his first -- intentional -- plunge into a pool of shit.

The director is Danny Boyle, who directed "Trainspotting" -- and I seem to remember someone falling into a toilet in that movie too. Ah, yes. Here it is (NSFW):



Well, "Slumdog Millionaire" is much more uplifting. And the excrement is a much cheerier color for whatever reason... artistic license? ... turmeric? ....

UPDATE 2: I let you force me again, see "Australia" and detect 7 points of comparison to "Slumdog."

I believe the judge should have said a little more about why those South Carolina license plates violate the Establishment Clause.

A federal judge has told South Carolina to stop making and selling the "I Believe" license plate. (Via Hot Air.)

In court, an attorney for [Americans United for Separation of Church and State] said state lawmakers had approved what she called a "uniquely Christian" license plate....

"The question really presented here is whether government should be allowed to exclude a religious message precisely because it's religious. Are we going to say it's okay in the public square to express a preference for a secular humanist position of 'In God we trust' or a preference for a football team or a university? And then at the same time say any expression of a religious viewpoint is per se, impermissible," said DMV attorney Kevin Hall....

I wrote about the "I Believe" license plate back in July:

The "I Believe" specialty plate is almost surely a state endorsement of Christianity that violates the Establishment Clause. (There's no array of specialty plates for different religions and no atheist plate. What would an atheist plate look like?)

But I'm taken aback by the federal judge's incredibly skimpy analysis of the legal question. (PDF.) After articulating the 3-part "Lemon test," Cameron McGowan Currie simply asserts:

Based on the record now before the court, the court finds it unlikely that the I Believe Act satisfies even one of these three requirements. As the Act must satisfy all three requirements to survive constitutional scrutiny, the court concludes Plaintiffs have made a strong showing of likelihood of success on the merits as to their Establishment Clause Claim.

That says nothing more than: I think it's unlikely that any of the 3 parts of the test is met. Nothing about why and no acknowledgment of the counter-arguments. It's a serious question, and it is certain that if the Supreme Court were to look at this case, it would take more than an invocation of the much-maligned Lemon test to say no to South Carolina's fund-raising and facilitation of individual expression via license plate.

***

I won't bore you with a disquisition on the history of the Lemon test. I'll just entertain you with Justice Scalia's famous mockery of the Court's spotty reliance on it:

[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, 505 U.S. 577 (1992), conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. [Citations omitted.]

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

And so, Judge Currie has prodded the old monster.

Brittany Zimmermann's scream: "If I heard the initial 'scream,' it didn't register as a scream."

Said the 911 operator, Rita Gahagan:

She said she later heard background noises that police have said indicate a struggle, but they "didn't register as anyone in obvious distress."

The interview was conducted days after Gahagan mishandled the 911 call from University of Wisconsin-Madison student Brittany Zimmermann, who was stabbed to death in her apartment April 2. Her murder remains unsolved.

Until Thursday, the county had refused to release Gahagan's interview; it provided the four pages documenting the interview after it was ordered to do so by Dane County Circuit Court Judge Richard Niess. A group of media outlets is suing the county for access to records related to its handling of the call.

The newly released records show county officials have not been candid with the public about the call.

They show they realized within days of Zimmermann's homicide that the call contained a scream. Yet weeks later, then-911 center director Joe Norwick insisted the dispatcher had no way of distinguishing the call from dozens of accidental and "hang-up" calls the center receives daily.

Dane County Executive Kathleen Falk later acknowledged the call contained significant sounds but refused to describe them. Norwick has since resigned.

The county did not even acknowledge the existence of the call until nearly a month after Zimmermann's slaying and then only after a report about it appeared in a newspaper.

The call lasted nearly a minute, and Gahagan inquired three times whether an emergency existed. After it was disconnected, Gahagan never called the number back, though the 911 center's policy requires it.

She told her bosses she failed to call Zimmermann back because she moved on "to other 911 calls waiting to be answered."

Police did not arrive at Zimmermann's apartment for more than 40 minutes, after her fiance found the 21-year-old dead and called 911.

Horrible negligence and a despicable cover-up. At best.

Victoria Toensing thinks Patrick Fitzgerald should can the emotional theatrics.

It's not right for a prosecutor to express his outrage, she says:

... Justice Department guidelines [say] that prior to trial a "prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." The prosecutor is permitted to "inform the public of the nature and extent" of the charges. In the vernacular of all of us who practice criminal law, that means the prosecutor may not go "beyond the four corners" -- the specific facts -- in the complaint or indictment...

Fitzgerald said what Blagojevich did "would make Lincoln roll over in his grave" and so forth. Clearly, inappropriate, according to Toensing, who seems to think Fitzgerald was emboldened by the adulation he received in the media over the way he treated Scooter Libby:

In his news conference in October 2005 announcing the indictment of Scooter Libby for obstruction of justice, he compared himself to an umpire who "gets sand thrown in his eyes." The umpire is "trying to figure what happened and somebody blocked" his view. With this statement, Mr. Fitzgerald made us all believe he could not find the person who leaked Valerie Plame's name as a CIA operative because of Mr. Libby. What we all now know is that Mr. Fitzgerald knew well before he ever started the investigation in January 2004 that Richard Armitage was the leaker and nothing Mr. Libby did or did not do threw sand in his eyes. In fact -- since there was no crime -- there was not even a game for the umpire to call.

In the Libby case, rather than suffer criticism, Mr. Fitzgerald became a media darling. And so in the Blagojevich case he returned to the microphone. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct as "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."

Let's get back to super-square prosecutors -- confined by the four corners.

Madoff made off with $50 billion.

"Billion" -- it still means something, doesn't it? One man schemed, Ponzi-style, all the way to $50 billion. How is that possible?

Investors may have been duped because [Bernard L.] Madoff sent detailed brokerage statements to investors whose money he managed, sometimes reporting hundreds of individual stock trades per month. Investors who asked for their money back could have it returned within days. And while typical Ponzi schemes promise very high returns, Mr. Madoff’s promised returns were relatively realistic — about 10 percent a year — though they were unrealistically steady.

People know that if it's too good to be true, it isn't. So, I guess, it wasn't too good, just good enough.

IN THE COMMENT: The Drill SGT says my title is misleading, since Madoff didn't get the money for himself. I was madly trying for a play on the name Madoff. But I doff ma toque to the Sgt. He's right.

"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."

At the Birch Tree Café...

... it's so wintry and desolate...

Talk to me....

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.

The moon will hit your eye like a big pizza pie.

Tonight.