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....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."
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.
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.