Blagojevich On Firmer Ground Than His Critics

One thing that’s serendipitous about Rod Blagojevich’s refusal to yield to those who want him to go away, is that it presents a golden opportunity to discover how little the rule of law means to the very people who are most expected to honor it. 

As I wrote Tuesday, Illinois Attorney General Lisa Madigan showed a greater commitment to demagoguery than justice when she embarrassingly tried to persuade her state’s Supreme Court that Blagojevich suffers from some unspecified mental disorder and should therefore be forcibly removed from office.  There are many others who also insist the governor is detached from reality, including CNN legal analyst Jeffrey Toobin, who last night demonstrated his unique brand of juristic expertise when he labeled Blagojevich “crazy” for having appointed Roland Burris to serve in the United States Senate. 

But if the best defense is a good offense, the embattled governor is actually comporting himself as a perfectly sane man, while his countless detractors descend into utter hysteria. 

Absent from the knee-jerk party line is any explanation as to why, with respect to the governor’s perspective, it was reasonable to assume Blagojevich would do what hostile legislators want him to do.  The ruling class has also failed to explain how it’s acceptable to keep a senate seat vacant indefinitely, or why the taint attached to Burris can’t be overcome.  The argument of this unctuous mob seems to be that the situation is unworkable because a bunch of holier-than-thou senators are intent on making it unworkable.  Talk about a self-fulfilling prophecy!

Much to the chagrin of overwrought politicians almost forty years later, the United States Supreme Court ruled in 1969 that “in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution.”  Those qualifications refer only to the officeholder’s age, citizenship and residency.  In other words, Harry Reid and his senate colleagues are not authorized to invent their own criteria and disqualify Burris simply because his appointer is facing serious criminal charges, at least not according to numerous legal scholars such as Eugene Volokh, Brian Kalt and Bruce Ackerman

Nonetheless, Illinois Secretary of State Jesse White said he will refuse to certify Blagojevich’s appointment of Burris.  White’s petulant reaction, if he follows through as threatened, would violate an Illinois statute which establishes it is the Secretary of State’s “duty” to “countersign and affix the seal of state to all commissions required by law to be issued by the Governor” and to “make a register of all appointments by the Governor…”

The highly exalted Barack Obama, renowned as a constitutional law expert, took a break from the sun and fun in Hawaii to add his voice to the chorus calling for Blagojevich’s immediate exit.  Without any intentional irony, the president-elect stated: “I believe the best resolution would be for the Governor to resign his office and allow a lawful and appropriate process of succession to take place.”

None of the putatively untainted ones have so far bothered to support their asserted position with any legal precedent or grounds.

Jeff Norman is the Director of U.S. Tour of Duty, a non-profit project that promotes dialogue about civic issues by organizing public forums, developing media strategies and producing audio and video content. He can be reached at

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