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.