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Tuesday, December 16, 2008

Michael Madigan Undermines Lisa Madigan, With Good Reason

Thanks to Illinois Review for cross-posting this piece.
Illinois Speaker of the House Michael Madigan has announced that in six days the Illinois legislature will convene a committee to begin considering whether the Illinois legislature should commence impeachment proceedings against Governor Rod Blagojevich. This measured announcement seriously undermines Speaker Madigan's daughter, Attorney General Lisa Madigan, who ran to court last Friday claiming the sky was falling and asking the Illinois Supreme Court to take the unprecedented step of stripping an elected Governor of his executive powers immediately.

As with most people outside Illinois, this is my first exposure to Speaker Madigan. Watching his announcement on television, he struck me as a fairly wily but professional politician who understands that sometimes you simply have to let events play themselves out, and that trying to force an issue prematurely can backfire. By appointing a committee (we know how efficiently committees work), and not even convening the committee for six days, Speaker Madigan has upped the pressure on Gov. Blagojevich while at the same time allowing for intervening events (a federal indictment perhaps) to force Gov. Blagojevich from office without a messy impeachment proceeding. Speaker Madigan has good reason not to rush to impeachment, since an impeachment trial will be a massive airing of Illinois' political dirty laundry which will not stop at Gov. Blagojevich's doorstep.

In a similar expression of caution, one of Madigan's top legislative leutenants has expressed the need for the legislature to proceed deliberately:

"This is not a kangaroo court," said Rep. Barbara Flynn Currie (D-Chicago), Madigan's top lieutenant, who will chair the investigations panel. "It's absolutely critical that we do this deliberately, that we don't rush to judgment, that we don't say, because the public is clamoring for his head, we should take the head first and do the trial later."
Contrast the measured legislative response to the histrionics of AG Madigan. At a press conference announcing the filing of the lawsuit, AG Madigan stated that emergency court relief was needed because "state government is paralyzed by a governor who is incapable of governing.... we thought it was important to file a TRO because of the urgency of this." The court papers filed by AG Madigan stress the "emergency" nature of the relief sought.

This sense of emergency is critical to AG Madigan's case, since temporary injunctive relief only is available (as the AG's papers acknowledge) where the failure of a court to act immediately will cause irreparable harm. The only allegation in AG's Madigan's papers which even comes close to showing an emergency, however, is that state borrowing supposedly is unavailable due to AG Madigan's inability to certify that the Governor is entitled to act on behalf of the State. This is a faux emergency created by AG Madigan's own stance as to certification. Typically, emergency court relief is not available to someone who has caused the emergency through her own foolish actions.

The cautious approach of Speaker Madigan and the legislature seriously undermines the core of AG Madigan's lawsuit. The fact that the legislature chose not even to convene a committee for six days reflects that the legislature does not see any emergency. A need to remove Gov. Bagojevich, yes; the sky could fall at any moment, no. If the political branch of government does not see an emergency, why should the judicial branch undertake emergency relief to resolve what essentially is a political question?

As I have said before, I have no idea what the Illinois Supreme Court will do with AG Madigan's emergency motion. I do know what the Illinois Supreme Court should do: Put the case on the slow track, decline to take a position one way or the other so as not to create precedent, and let the politicians decide politics. And Lisa Madigan should learn from her father.

UPDATE: Thanks to Legal Blog Watch for discussing this article on its Blagojevich update.

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