According to the Chicago Tribune, the Illinois Supreme Court has denied a petition by Attorney General Lisa Madigan to declare Governor Blagojevich incompetent to act as governor. When the government first filed the petition, I had long discussions with other attorneys about the appropriateness of a court declaring an elected official unfit to serve (outside of a mental competency proceeding). In my opinion, the state's petition raises deeper democracy concerns than Bush v. Gore. In that case, the Supreme Court did not enjoin an elected official from holding office. Instead, it enjoined the counting of votes under standards that lacked uniformity. Although I vehemently disagreed with the Court's decision to stop the recounts altogether, its ruling did not prevent a sitting, democratically elected official from exercising his or her official duties. Ultimately, several studies showed that even under the most liberal standards, Gore still would have lost.
Now that the Illinois Supreme Court has refused to enter the political thicket surrounding Blagojevich, the state legislature will have to take up the matter of his fitness to serve through the impeachment process. With respect to the U.S. Constitution, the Framers assigned responsiblity over impeachment to Congress rather than the courts precisely because they believed that the removal of public officials should come with political accountability. Federal judges, who have lifetime tenure, are not immediately subject to election politics. Furthermore, if courts played a role in the removal of public officials, they could preside over the impeachment of judges. This power could potentially insulate them from one of the few checks over the judiciary that lawmakers possess. Although the Illinois court did not issue a written opinion, the ruling eliminates the democracy concerns that the petition implicated.
Now, Blagojevich will remain in office unless he resigns, is impeached, or is convicted and sentenced to prison. Prosecutors, however, have asked the state to delay the impeachment process believing that it could interfere with their ongoing criminal investigation. It remains unclear, however, whether the state will postpone impeachment now that the court has declined to enjoin Blagojevich from acting as governor.
Wednesday, December 17, 2008
Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines
The latest post on Heidi Li's blog raises a provocative question about the role that bargaining plays in ordinary politics. The Blagojevich arrest has forced legal and political experts to distinguish acceptable from criminal political bargaining. Although Blagojevich's self-dealing has outraged the public, it is clear that politicians engage in dealmaking all the time.
For instance, happenstance probably does not explain why most of the top names in Obama's Cabinet either campaigned for or endorsed him at some point. While presidents often turn to political allies as Cabinet choices, Obama's selection of Clinton, whom he characterized as lacking judgment on a major foreign policy decision, likely resulted because she provided crucial support for his candidacy and helped keep enough PUMAs in the party for him to win.
Li's essay responds to an article in the L.A. Times, which states that if Governor Paterson selects Kennedy, he would benefit in the gubernatorial election because he would run on the same ticket with the famed daughter of the Kennedy dynasty. According to Li,
I think it is difficult, but not impossible, to draw lines in this area. Nevertheless, in some cases legality and criminality could both reside in a complicated grey area. Blagojevich's situation is troubling because, if the criminal complaint is true, he was effectively auctioning the Senate seat. His own financial and political gain seemed to dictate exclusively how he exercised executive authority. Furthermore, securing benefits for a family members (here, a spouse) places the behavior even farther on the side of criminality.
For instance, happenstance probably does not explain why most of the top names in Obama's Cabinet either campaigned for or endorsed him at some point. While presidents often turn to political allies as Cabinet choices, Obama's selection of Clinton, whom he characterized as lacking judgment on a major foreign policy decision, likely resulted because she provided crucial support for his candidacy and helped keep enough PUMAs in the party for him to win.
Li's essay responds to an article in the L.A. Times, which states that if Governor Paterson selects Kennedy, he would benefit in the gubernatorial election because he would run on the same ticket with the famed daughter of the Kennedy dynasty. According to Li,
[I]t would be very tempting [for Paterson] to run on a ticket with somebody named Kennedy. Be that as it may, I think Governor Paterson would start to seem somewhat ethically similar to Illinois Governor Rod Blagojevich. . . . The analogy is in the notion that a sitting governor would use her or his power to appoint a Senator with her or his own narrow self-interest in as the key driver in the decision. Of course, a governor who appoints a qualified person who seems likely to understand how to use a junior Senate seat to serve well her or his constituents and the rest of the country will look better than a governor who appoints somebody with little or no experience in elected politics or legislative bodies. That is, it makes a governor look good when she or he appoints somebody who one has reason to think will make a good and effective Senator, and so, broadly speaking, a governor's self-interest is in play when she or he appoints somebody to fill a vacancy.The news media have only recently begun to explore the messy line-drawing in this area. On Monday, the New York Times published an article on the subject, which states that:
Ever since the country’s founding, prosecutors, defense lawyers and juries have been trying to define the difference between criminality and political deal-making. They have never established a clear-cut line between the offensive and the illegal, and the hours of wiretapped conversations involving Mr. Blagojevich, filled with crass, profane talk about benefiting from the Senate vacancy, may fall into a legal gray area.The article offers the perspective of Robert Bennett, a leading Washington, DC criminal defense lawyer, who has represented defendants charged with political corruption. According to Bennett:
[Washington] is full of people who call themselves ambassadors, and all they did was pay $200,000 or $300,000 to the Republican or Democratic Party . . . .You have to wonder, How much of this guy’s problem was his language, rather than what he really did?Time Magazine's Joe Klein is less diplomatic. Klein argues that Kennedy's public job hunting and Blagojevich's blatant deal making have made the search for new Senators a "skeevy travesty."
I think it is difficult, but not impossible, to draw lines in this area. Nevertheless, in some cases legality and criminality could both reside in a complicated grey area. Blagojevich's situation is troubling because, if the criminal complaint is true, he was effectively auctioning the Senate seat. His own financial and political gain seemed to dictate exclusively how he exercised executive authority. Furthermore, securing benefits for a family members (here, a spouse) places the behavior even farther on the side of criminality.
Pick Me! Caroline Kennedy Officially on the Job Market
After initial reports gave conflicting information, it is now official: Caroline Kennedy wants to fill Hillary Clinton's U.S. Senate seat. I have applied for a few jobs in my lifetime, but I cannot imagine "applying" for a Senate position: "Dear Governor Paterson, I am certain that you have received many applications for this important position, but my resume warrants careful consideration."
How does the Dissenting Justice crowd feel about this development? I think she will likely get it. Why would she go public unless she expected the job? Besides, Obama personally called Paterson and supported her candidacy -- pre-Blagojevich. If you are deeply cynical, you might even believe that she has made her desire public in order to appear "transparent" and avoid having her inevitable selection look like a backroom deal. But what do I know about deep cynicism?
How does the Dissenting Justice crowd feel about this development? I think she will likely get it. Why would she go public unless she expected the job? Besides, Obama personally called Paterson and supported her candidacy -- pre-Blagojevich. If you are deeply cynical, you might even believe that she has made her desire public in order to appear "transparent" and avoid having her inevitable selection look like a backroom deal. But what do I know about deep cynicism?
New Chapter for Republic Windows: Bankruptcy
The inevitable has finally happened for Republic Windows and Doors. The company has entered Chapter 7 bankruptcy and will officially wind down its business. According to reports from a Chicago CBS affiliate, Bank of America demanded that the company shut down as a condition for the extension of additional credit to pay its workers' legally required wages and benefits. Richard Gillman, the company's owner, says that he and his family will now focus on operating an Iowa business they recently purchased. Apparently, local Iowans are cautiously optimistic about Gillman's new mission.
According to the bankruptcy petition, the company has debts between $10-50 million and assets of $1-10 million. This seems to confirm my argument that Bank of America likely had very rational -- rather than sinister -- reasons for denying the company additional credit. According to the bank, the company maxed out its $5 million credit line.
Despite the company's poor finanicial status, protests and media attention probably caused Bank of America and JP Morgan Chase to pay for its obligations to its workers. Now, the company can operate its nonunion factory and avoid liability under the WARN Act. The discarded Chicago workers, however, will remain unemployed unless they find alternative work. Many of those workers hope that investors will come forward to save the company.
Good Source: USGlass News Network
Related Readings on Dissenting Justice:
* MADE IN IOWA: Did Company in Chicago Sit-In Illegally Discard Its Workers and Quietly Relocate While Liberals Forced BOA to Pay for the Shady Scheme?
* Republic Windows and Doors Received a Bailout from Chicago Before It Bailed Out of Chicago
* Laid-Off Republic Windows and Doors Workers: Pawns in Political Football
* Factory Closes in Chicago; Workers Invoke Bailout During Protest
* What (I Think) Progressives Should Have Done for Workers of Republic Windows and Doors
According to the bankruptcy petition, the company has debts between $10-50 million and assets of $1-10 million. This seems to confirm my argument that Bank of America likely had very rational -- rather than sinister -- reasons for denying the company additional credit. According to the bank, the company maxed out its $5 million credit line.
Despite the company's poor finanicial status, protests and media attention probably caused Bank of America and JP Morgan Chase to pay for its obligations to its workers. Now, the company can operate its nonunion factory and avoid liability under the WARN Act. The discarded Chicago workers, however, will remain unemployed unless they find alternative work. Many of those workers hope that investors will come forward to save the company.
Good Source: USGlass News Network
Related Readings on Dissenting Justice:
* MADE IN IOWA: Did Company in Chicago Sit-In Illegally Discard Its Workers and Quietly Relocate While Liberals Forced BOA to Pay for the Shady Scheme?
* Republic Windows and Doors Received a Bailout from Chicago Before It Bailed Out of Chicago
* Laid-Off Republic Windows and Doors Workers: Pawns in Political Football
* Factory Closes in Chicago; Workers Invoke Bailout During Protest
* What (I Think) Progressives Should Have Done for Workers of Republic Windows and Doors
Blago Impeachment: What Would Lincoln Do?
We have all heard a lot of Lincoln references associated with Obama's candidacy and election, but this one is perhaps the most peculiar. According to the New York Times, prosecutors in the Blagojevich case have asked the Illinois legislature to postpone impeaching the governor because this could compromise their investigation. Representative Monique Davis, however, insisted that the impeachment process must proceed because Illinois needs clarity: "It’s the Land of Lincoln . . . It’s the land of Barack Obama." What would Lincoln do?
Sunday, December 14, 2008
Don't Ask, Don't Tell, Don't Hold Your Breath
During a recent interview with CNN, Colin Powell responded to a question concerning the military's discriminatory policy against gays and lesbians. Powell said that he hoped military leaders would "review" the policy, but he refused to state whether or not he wanted the policy lifted, maintained or replaced with something else.
Powell, as Chair of the Joint Chiefs of Staff during the Clinton administration, had a central role, along with Senator Sam Nunn (then Chair of the Senate Committee on Armed Services), in derailing Clinton's effort to overturn the military's antigay policy. As a result, military leaders, Congress, and Clinton accepted "Don't Ask, Don't Tell" as a compromise position. Interestingly, both Powell and Nunn have recently called for a "review" of the current policy, but neither will take a public opinion on the substance of the policy. Powell and Nunn endorsed Obama, and Nunn's name appeared on some initial lists of Obama's potential running mates.
Secretary of Defense Robert Gates, who will retain that role in the Obama administration, has also addressed Don't Ask, Don't Tell. During an interview, Gates said he was too busy conducting wars to worry about the policy (see Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights?).
Obama's website, by contrast, states that the president-elect "agrees with former Chairman of the Joint Chiefs of Staff John Shalikashvili and other military experts that we need to repeal the "don't ask, don't tell" policy." The website also states that Obama "will work with military leaders to repeal the current policy and ensure it helps accomplish our national defense goals." The Washington Times, however, released a story last month reporting that Obama will delay acting on the policy until 2010. An anonymous spokesperson from Obama's transition team denied this report.
Readers might find Shalikashvili's New York Times essay interesting, given Obama's endorsement of his position and the dispute over whether his administration would delay acting on the policy. Shalikashvili agreed with Don't Ask, Don't Tell in 1993 when he sat on the Joint Chiefs of Staff. Today, however, he has "second thoughts," but he supports a "measured" response. Like Gates, he also says that priorities such as fighting the war should preclude immediate action on the policy. He argues that "[b]y taking a measured, prudent approach to change, political and military leaders can focus on solving the nation’s most pressing problems while remaining genuinely open to the eventual and inevitable lifting of the ban" (italics added). No, Annie, this does not sound like "tomorrow."
My take: Shalikashvili's statement probably most closely represents Obama's position. "Studying" the issue will take a substantial amount of time, and dealing with the economy, Iraq, Afghanistan and healthcare will take priority in public discourse. Through it all, however, Obama will "remain genuinely open to the eventual and inevitable lifting of the ban." In other words, if this is "your" issue, take on a lot of other projects and wait and see what actually happens. Having lived through the anti-gay backlash against Clinton, I agree with a measured approach, but this does not change the fact that "measured" responses often mean footdragging and delayed justice.
_____________________________
Powell's Comments on Don't Ask, Don't Tell
Powell, as Chair of the Joint Chiefs of Staff during the Clinton administration, had a central role, along with Senator Sam Nunn (then Chair of the Senate Committee on Armed Services), in derailing Clinton's effort to overturn the military's antigay policy. As a result, military leaders, Congress, and Clinton accepted "Don't Ask, Don't Tell" as a compromise position. Interestingly, both Powell and Nunn have recently called for a "review" of the current policy, but neither will take a public opinion on the substance of the policy. Powell and Nunn endorsed Obama, and Nunn's name appeared on some initial lists of Obama's potential running mates.
Secretary of Defense Robert Gates, who will retain that role in the Obama administration, has also addressed Don't Ask, Don't Tell. During an interview, Gates said he was too busy conducting wars to worry about the policy (see Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights?).
Obama's website, by contrast, states that the president-elect "agrees with former Chairman of the Joint Chiefs of Staff John Shalikashvili and other military experts that we need to repeal the "don't ask, don't tell" policy." The website also states that Obama "will work with military leaders to repeal the current policy and ensure it helps accomplish our national defense goals." The Washington Times, however, released a story last month reporting that Obama will delay acting on the policy until 2010. An anonymous spokesperson from Obama's transition team denied this report.
Readers might find Shalikashvili's New York Times essay interesting, given Obama's endorsement of his position and the dispute over whether his administration would delay acting on the policy. Shalikashvili agreed with Don't Ask, Don't Tell in 1993 when he sat on the Joint Chiefs of Staff. Today, however, he has "second thoughts," but he supports a "measured" response. Like Gates, he also says that priorities such as fighting the war should preclude immediate action on the policy. He argues that "[b]y taking a measured, prudent approach to change, political and military leaders can focus on solving the nation’s most pressing problems while remaining genuinely open to the eventual and inevitable lifting of the ban" (italics added). No, Annie, this does not sound like "tomorrow."
My take: Shalikashvili's statement probably most closely represents Obama's position. "Studying" the issue will take a substantial amount of time, and dealing with the economy, Iraq, Afghanistan and healthcare will take priority in public discourse. Through it all, however, Obama will "remain genuinely open to the eventual and inevitable lifting of the ban." In other words, if this is "your" issue, take on a lot of other projects and wait and see what actually happens. Having lived through the anti-gay backlash against Clinton, I agree with a measured approach, but this does not change the fact that "measured" responses often mean footdragging and delayed justice.
_____________________________
Powell's Comments on Don't Ask, Don't Tell
We definitely should reevaluate it. It's been 15 years since we put in
"don't ask, don't tell," which was a policy that became a law. I didn't want it
to become a law, but it became a law. Congress felt that strongly about it.
But it's been 15 years, and attitudes have changed. And so, I think it is
time for the Congress, since it is their law, to have a full review of it. And
I'm quite sure that's what President-elect Obama will want to do.
But people have said to me, well, then, what do you think? I said, well,
what I think is, let's review it, but I'm not going to make a judgment as to
whether it should be overturned or not until I hear from the chairman of the
Joint Chiefs of Staff, the Joint Chiefs of Staff, the commanders who are
responsible for our armed forces in a time of war.
And so, I have to hear what they think and what the secretary of defense
thinks before I would come down on one side or the other.
Because I've always felt that the military is a unique institution. It is
not like any other institution in our system. You are told who you will live
with. You are told who you will share your most intimate accommodations with.
You are told whether you will live or die.
And for that reason, the courts have always upheld the ability of the armed
forces of the United States to put in procedures and rules that would not be
acceptable in any other institution.
So, the Congress, I think, has an obligation to review the law, and I hope
that it's a very spirited review. And I hope that President-elect Obama, in one
of his first actions, will ask the Joint Chiefs of Staff to take a look at the
policy and the law and to get their recommendations before he makes a judgment
with respect to the administration position.
But times have changed. This is not 1993. It is 2008. And we should review
the law.
Oh, Please! Owner of Republic Windows and Doors Plays Victim Card, Denies "Union Dumping"
Richard Gellman (previous reports listed his last name as "Gillman"), the owner of Republic Windows and Doors has come forward to blame Bank of America (again) for the company's demise. Gellman alleges that earlier this year Bank of America decided to "liquidate" the company even though he had lined up investors to finance a cash purchase of an Ohio company. This purchase, according to Gellman, would have allowed Republic Windows and Doors to earn a $3.5 million profit.
Of course, Gellman's latest "victim impact statement" does not disclose the terms of this alleged cash infusion and how it would have affected the company's ability to service its debt with Bank of America. Instead, he just blames the bank for the company's failure. But if the company was already having trouble paying Bank of America, the bank probably had legitimate concerns with the introduction of new creditors and a potentially risky investment. A reasonable creditor could consider an investment on the higher side of risk if it were the sole plan the debtor offered to generate a profit and pay its bills. Divorced from preexisting emotions concerning bailouts and banks, the emerging facts still indicate that the company was on the skids and that Bank of America made a rational banking decision.
Gellman also provides new dirt for analysis: The employees in the Iowa company are not unionized. Basically, Gellman has discarded his unionized workforce in Chicago, quietly opened a new company in Iowa that conducts the same business, used big Chicago politicos to shame Bank of America into paying Republic's labor obligations, and will now run a cheaper business with a nonunionized workforce. Progressives, however, continue to center their analysis and criticism on Bank of America.
Gellman denies being a union-dumper, however, and he says that the union issue did not influence his decision to move to Iowa. Gellman, on the other hand, does confirm an argument I have made in previous blog entries. He says that the relatively cheaper cost of operating the business in Iowa versus Chicago indeed impacted the decision to relocate. So the drama continues. Personally, I find Gellman about as credible a figure as Blagojevich.
Source: Chicago Sun-Times
Related Readings on Dissenting Justice:
* MADE IN IOWA: Did Company in Chicago Sit-In Illegally Discard Its Workers and Quietly Relocate While Liberals Forced BOA to Pay for the Shady Scheme?
* Republic Windows and Doors Received a Bailout from Chicago Before It Bailed Out of Chicago
* Laid-Off Republic Windows and Doors Workers: Pawns in Political Football
* Factory Closes in Chicago; Workers Invoke Bailout During Protest
* What (I Think) Progressives Should Have Done for Workers of Republic Windows and Doors
Of course, Gellman's latest "victim impact statement" does not disclose the terms of this alleged cash infusion and how it would have affected the company's ability to service its debt with Bank of America. Instead, he just blames the bank for the company's failure. But if the company was already having trouble paying Bank of America, the bank probably had legitimate concerns with the introduction of new creditors and a potentially risky investment. A reasonable creditor could consider an investment on the higher side of risk if it were the sole plan the debtor offered to generate a profit and pay its bills. Divorced from preexisting emotions concerning bailouts and banks, the emerging facts still indicate that the company was on the skids and that Bank of America made a rational banking decision.
Gellman also provides new dirt for analysis: The employees in the Iowa company are not unionized. Basically, Gellman has discarded his unionized workforce in Chicago, quietly opened a new company in Iowa that conducts the same business, used big Chicago politicos to shame Bank of America into paying Republic's labor obligations, and will now run a cheaper business with a nonunionized workforce. Progressives, however, continue to center their analysis and criticism on Bank of America.
Gellman denies being a union-dumper, however, and he says that the union issue did not influence his decision to move to Iowa. Gellman, on the other hand, does confirm an argument I have made in previous blog entries. He says that the relatively cheaper cost of operating the business in Iowa versus Chicago indeed impacted the decision to relocate. So the drama continues. Personally, I find Gellman about as credible a figure as Blagojevich.
Source: Chicago Sun-Times
Related Readings on Dissenting Justice:
* MADE IN IOWA: Did Company in Chicago Sit-In Illegally Discard Its Workers and Quietly Relocate While Liberals Forced BOA to Pay for the Shady Scheme?
* Republic Windows and Doors Received a Bailout from Chicago Before It Bailed Out of Chicago
* Laid-Off Republic Windows and Doors Workers: Pawns in Political Football
* Factory Closes in Chicago; Workers Invoke Bailout During Protest
* What (I Think) Progressives Should Have Done for Workers of Republic Windows and Doors
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