December 17, 2008

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.

33 comments:

chuck b. said...

The across-the-board mediocrity is just painful to behold. It's shameful. Lincoln would turn in his grave, indeed.

David said...

The eloquence of silence.

siyeh pass said...

Cooler heads prevailed. Good to hear.

reader_iam said...

Inferred (by me) comment: Puh-leeze.

Zachary Paul Sire said...

Awesome. It would have set a bizarre and dangerous precedent.

Even though it was a horrible farce, I'm glad California at least went through the proper channels when we recalled Gray Davis.

Zeb Quinn said...

They didn't know what to say.

David said...

A thwarting?

Sounds like something Titus would enjoy.

David said...

From Wooden Canoe Builders Guide website:

"THWART: This is the wooden member that spans the open side of the canoe, from gunwale to gunwale, usually at the centre of the canoe. All canoes have at least one thwart and many have two, the second located between the centre thwart and the stern seat. On occasion, a canoe will have a third thwart just behind the bow seat. The thwarts maintain the shape of the canoe and provide structural support for the gunwales.

PADDLING THWART: To facilitate paddling from a kneeling position, ‘paddling thwarts’ may be installed in place of seats or, for solo paddling, near the centre of the canoe."

rhhardin said...

It's probably a payoff.

former law student said...

But she got Abner Mikva (ex-Congressman, Federal Appellate judge, White House counsel, and law professor) to review and sign onto the brief. So how foolish could it have been?

bearbee said...

But she got Abner Mikva.......

I was kinda wondering the same thing. Why would he lend his name and talents to the enterprise?

TMink said...

This week in America, don't we still require a conviction on the charges?

Trey

Ignorance is Bliss said...

Paddling Thwart

Sounds like something Titus would really enjoy.

And don't get me started on the part about the wooden member

$9,000,000,000 Write Off said...

Why would he resign? He's still getting paid, his future employment is questionable and he can't rely on Elliot Spitzer's daddy's money to move on.

They could buy him out, that I'm sure of.

jdeeripper said...

Even David Patterson saw this one coming.

MayBee said...

They could buy him out, that I'm sure of.

Hey, good point!
Everybody knows what it will take to get rid of him fast, right?
He's got a Mayoral seat, and it's a f*cking valuable thing.

Richard said...

Shouldn't there have been some negative consequence for filing such a laughable motion? I mean, at least make her pay postage or pick up garbage in state parks.

Ann Althouse said...

"But she got Abner Mikva (ex-Congressman, Federal Appellate judge, White House counsel, and law professor) to review and sign onto the brief. So how foolish could it have been?"

"I was kinda wondering the same thing. Why would he lend his name and talents to the enterprise?"

Good question. He does have ties to Obama, you know. He's also 82.

mccullough said...

Abner Mikva's a hack. So's Lisa Madigan.

David said...

Mikva also has long ties to the Madigans.

Simon said...

former law student said...
"But she got Abner Mikva (ex-Congressman, Federal Appellate judge, White House counsel, and law professor) to review and sign onto the brief. So how foolish could it have been?"

It was foolish in one sense and not in another. I continue to think that at a conceptual level, the antecedent theory of the case - that "disability" doesn't mean a gammy leg, that the governor can become disabled, and in those circumstances be suspended by the court - was sound. If Blago had remained in jail, her case might have prevailed, and that might well have been appropriate pending impeachment procedings. The problem for her was that once Blagojevich was released, it became really tough to make the argument he was disabled, and she failed to make such an argument (being under political and emotional stress surely can't qualify as a disability).

Ann Althouse said...

But Simon, he was out of jail the entire time she was proposing and filing the motion. You might just as well say if he'd been in a coma or trapped in a mine....

David said...
This comment has been removed by the author.
David said...

Simon, you say:

"I continue to think that at a conceptual level, the antecedent theory of the case - that "disability" doesn't mean a gammy leg, that the governor can become disabled, and in those circumstances be suspended by the court - was sound."

Why? Because you think this might be a good policy? What law of Illinois gives the Illinois Supreme Court the right to remove the governor on the basis suggested by AG Madigan? That's the "antecedent" you need, not an "antecedent theory" at some "conceptual level" (Whatever that means.)

Lem said...

Simon says.

..that the governor can become disabled, and in those circumstances be suspended by the court - was sound.

Could a governor ever contemplate blackmail as a disability?

Ike's son

..but if the Chinese Communists or North Koreans ever took me prisoner, and threatened blackmail, he could be forced to resign the presidency. I agreed to that condition wholeheartedly. I would take my life before being captured.

http://tinyurl.com/4zlhap

If Blago's pottymouth wife were kidnapped and held for ramsom could the AG claim the Governor disabled?

Seven Machos said...

As I predicted. The Illinois courts are really pretty reasonable -- certainly no worse than anything on offer in Wisconsin.

Lem said...

Granted ... chivalry is not only dead, it decomposed long ago.

Trochilus said...

Thinking a bit more about the Chicago angle . . . she probably should have had the Blues Brothers record a song about that pathetic move!

They could have called it Rubber Opinion.

And the lyrics would include the query,

"Have you ever hear of a "Wish Brief"? . . . a wish brief is the kind of brief where you have 25 pieces of paper, and you wish you had some law!

"The other day I filed a ricochet filing. A ricochet filing is the kind of a filing that's supposed to bounce back off the wall into your mouth. If it don't bounce back ... you go hungry!

"Do do do dum!

"Whaddya want for nothin'? Rubber Opinion?
"

Simon said...

Lem, I think there could be circumstances in which extreme psychological duress would rise to being a disability, but these ones do not. If the Governor was convicted, and still refused to resign, that might be an example. Also, I take your question to posit voluntary self-suspension by the Governor, for which Art. 5 §6(c) poses a lower threshold ("seriously impeded in the exercise of his powers" vs. "unable to serve because of ... [an unenumerated] disability."

MayBee said...

Shoot.
I just realized I wrote "Mayoral" rather than "Gubernatorial".
Anyway.
Blago can hold his seat hostage just as he wanted to do with the Senatorial seat.

Trochilus said...

Simon, this really is rather simple. Parsing the particulars about exactly where the mental line may be, is really beside the point.

The Illinois AG obviously over-reached by asking the state's Supreme Court to implement by contrivance, an extraordinary remedy, one for which they had absolutely no persuasive precedent, and no clear constitutional authority.

Nor, I would guess, did they have the political inclination.

Why should the Court have overstepped it's authority merely to let the legislative branch off the hook? Her father does not want an impeachment, for one reason because they think it will turn into a rock-throwing contest. And Blago likely has a considerable pile of rocks at his disposal -- at least, the Democrat legislators seem to perceive it that way. And they don't want to take that chance! They'd rather vote "present."

So she tried to short-circuit the process. And, as David Freddoso has noted, Lisa may also have been trying to avoid the Jim Ryan (former AG, no relation to George) syndrome, i.e., the appearance of doing nothing.

The point is that there is an expressly mentioned constitutional basis for removal in the form of impeachment, a demonstrable constitutional commitment of the removal remedy to, as I understand it, two coordinate branches, a remedy that expressly contemplates the coparcenary participation of the legislature and at least one member of the Court acting in a traditional judicial role of presiding.

So why should they have recklessly and precipitously jumped to shaky ground, when there was a firm constitutional foothold readily available?

Contrary to the assertions in the AG's brief, there was quite persuasive proof, identified by Byron York that the framers, and I would argue by extension the ratifiers, intended the "catch-all" phrase "other disability" to at least be aimed at physical or mental disabilities, and not at political or legal difficulties, as she was arguing.

As others, including Ann have pointed out, in our Republic, one in which representative democratic principles carry great weight, the undoing by mere judicial fiat what the voters have openly chosen (however unwisely) is not a step to be taken lightly.

The Illinois Supreme Court wisely avoided the AG's attempt to induce them to take a roundhouse swing at the tar baby.

And, they did so by refusing to even opine on the "merits" of the AG's ill-conceived petition. In one sense, that was the bottom-line insult, masquerading, of course, as judicial restraint. She had it coming, which is why many of us poked fun at her action, rather than trying to further engage in discerning the meaning of that constitutional phrase with nano-precision. It's not going to happen that way.

Fitzgerald may yet coax him into resignation through negotiation. Or, the Republicans may yet win the political debate by demanding Obama's replacement through the preferred democratic process, a special election.

That, particularly now that Blago has shrewdly said he will not appoint.

The Democrats, for their part, have now narrowed their available choices to one that they would rather eschew -- impeachment.

Issob Morocco said...

Hi Ann,

I hope you are not engaging in Ageism with your comment on Abner Mikva's age of 82. That could taint you as you work towards that milestone. I think your Friend of the One comment was sufficient.

Cheers!

Simon said...

Trochilus said:
"Parsing the particulars about exactly where the mental line may be, is really beside the point."

I think it's very much the point unless you start from various assumptions about what constitutes a disability, or from the assertion (untenable in view of §6(d)) that the court can't order the Governor removed in the event of a disability.

"The Illinois AG obviously over-reached by asking the state's Supreme Court to implement by contrivance, an extraordinary remedy, one for which they had absolutely no persuasive precedent, and no clear constitutional authority."

There's clear constitutional authority for the proposition that the court can decide whether a Governor has become disabled, unless the legislature has provided an alternative process (which they haven't). The remaining issue is whether that standard was met in this instance, and on that issue, the lack of precedent or a cohesive argument by Madigan was fatal, and rightly so.

"Why should the Court have overstepped it's authority merely to let the legislative branch off the hook? ... [Madigan] tried to short-circuit the [impeachment] process."

The court has authority to adjudicate the question, so it's hard to see how it could have "overstepped" that authority by taking the case, still less by ruling one way or another on it. Moreover, suspension doesn't let the legislature off the hook: there would still be a need to impeach Blagojevich even with him suspended. Article V clearly contemplates suspension as a temporary remedy in the mine run of cases, and there is no reason to assume that the Grand Jury will actually indict Blago, an outcome that would result in his restoration to office. Impeachment and suspension are separate processes that address different concerns, and while I agree that separate provisions should be read to curtail overlap and merger, see, e.g., United States v. Scialabba, 282 F.3d 475 (2002), I don't think that concern is present here. The purpose of suspension would be to immediately but temporarily take Blagojevich's hands off the levers of power; there would still be a powerful incentive to impeach him to remove him permanently.

"[T]here is ... a demonstrable constitutional commitment of the removal remedy to, as I understand it, two coordinate branches...."

I disagree. Read Art. V § 6(d).

"And, they did so by refusing to even opine on the 'merits' of the AG's ill-conceived petition. In one sense, that was the bottom-line insult, masquerading, of course, as judicial restraint"

The Supreme Court of the United States has repeatedly admonished that denial of cert implies no view on the merits; does the Supreme Court of Illinois take a different view about its decision not to take a case?