December 13, 2008

Sense At Daily Kos?

As you all know, I am not a fan of the folks at Daily Kos. I consider it a cesspool of the worst that liberalism has to offer -- hate, profanity, and anti-Americanism.

That said, I can't help but be struck by this diary about Illinois Attorney General Lisa Madigan's effort to do an end-run around the Illinois Constitution's impeachment provisions by having the Illinois Supreme Court declare Gov. Rod Blagojevich unfit for office. It mirrors my own thoughts on the matter, which I had been planning to write about tonight.

The Illinois Attorney General is trying to stage a Thai-style coup this weekend. I know that Blagojevich is an asshole and should leave office forthwith, but even if it's technically legal, having the Supreme Court remove him without due process is antidemocratic and the wrong way to go about it.

The constitutions of the several states are all based on the same principles of the Federal one, three coequal branches providing checks and balances. While this is less efficient than the parliamentary system, where the chairman of committee of the legislature has near dictatorial powers for a time (see Canada), the removal of an elected executive by members of an unelected branch without due process is nothing more than a coup d'etat and anti-democratic. I have no brief for Blagojevich and what he did, but this way of getting rid of him is profoundly wrong.

the law in question was about the Governor being in coma or being so physically damaged that CANNOT physically do his job. This is not the case here. Blagojevich may be a felonious asshole, but to some extent, so are the other 49 governors, Look at Sarah Palin, for example, or Jennifer Granholm, who is only slightly more popular than Blagojevich. Just because Blago got caught doesn't mean the Supreme Court can get rid of him without due process. If he was in a coma or in the hospital heavily sedated, means he couldn't object, and in the latter case, he could probably get his job back as soon he was well enough to ask for it. OR could he?

Of course, the diarist does make a small mistake -- in Illinois the judicial branch is elected. However, the reality is that removal of an executive who has not been convicted of a crime is the sole province of either the voters (refusal to reelect) or the legislative branch (impeachment). The incapacity provision is clearly intended to cover a physical or mental illness, not political corruption. A quick check of the Illinois Constitution makes it clear where the power to remove a corrupt governor lies:

ARTICLE IV SECTION 14. IMPEACHMENT The House of Representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment and, by the vote of a majority of the members elected, to impeach Executive and Judicial officers. Impeachments shall be tried by the Senate. When sitting for that purpose, Senators shall be upon oath, or affirmation, to do justice according to law. If the Governor is tried, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of two-thirds of the Senators elected. Judgment shall not extend beyond removal from office and disqualification to hold any public office of this State. An impeached officer, whether convicted or acquitted, shall be liable to prosecution, trial, judgment and punishment according to law.

Given that it is a bedrock principle of our system that members of one branch may not delegate their constitutional prerogatives to officers of another branch, it is obvious that the Madigan gambit is in violation of the Illinois Constitution of 1970.

Why, then, is Madigan making this effort? While one could infer that she is doing so out of concern for good government, consider a couple of points. First, Madigan is seen as atop candidate for governor in the next election. This effort would burnish her image in advance of the election. Second, Madigan's father, the Speaker of the Illinois House, is a Blagojevich enemy who would be spared the need to impeach a governor of his own party by this move. And third, there is currently the incentive for Blagojevich to rat out any legislator who votes for impeachment or conviction, so this provides cover for a host of grateful Illinois pols.

Sadly, We the People have become less concerned to constitutional niceties when they get in the way of what we want done. Here's hoping that there are enough judges on the Illinois Supreme Court who still recognize that a constitution is more than just a piece of paper to be ignored when it suits them. Impeachment, not removal for unfitness, is the proper outcome. It is so simple that even a Kossack can see it.

UPDATE: Not precisely on this point, but Darren makes a point that is certainly tangential to one of mine in this post about how Republics degenerate.

UPDATE 2: Althouse offers a much more detailed explanation of what is wrong with this move by Madigan from a constitutional viewpoint.

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