I almost feel sorry for Gov. Brewer’s attorney, Lisa Hauser.  Late yesterday the AZ Supreme Court ruled that Gov. Brewer had illegally removed Chairwoman Mathis from the IRC (Independent Redistricting Commission). 1 I feel sorry for Hauser because she is, simply put, just a lawyer.

By that I mean she is, like all attorneys, a professional who advocates for her client to the absolute best of her abilities.  I criticized the argument she made before the state’s highest court in an earlier post (and I will do so again) but it’s not really Hauser’s fault.  All attorney’s, at least the ones who hold to the profession’s principals, do the best they can with what their client gives them. They have to make the best argument they can as directed by the client.  So if the client comes to them and says, ‘I removed the head of the IRC because of gross misconduct, here is the evidence (or here are the arguments I used), and I want you to defend this position without wavering” then the attorney has to work within that construct. 2  They have to assume their client is telling them the truth.  They have to use ONLY relevant evidence in the case.   Finally, they have to find legal arguments for their position, which provides the Court with plausible and acceptable justifications for ruling in their favor.

In essence, Hauser was given a real sh*t sandwich in this case.  The Governor (and all her GOP lackeys in the Senate) removed Chairwoman Mathis without any evidence of gross misconduct.  I’m sure the Governor put on a very good show when she spoke to the Senate and argued very convincingly to convince the senators to vote for Mathis’ removal.  Unfortunately for them, that is rhetoric and not evidence. 3

So Lisa Hauser had no evidence that Chairwoman Mathis had engaged in any gross misconduct and she surely knew that the Court would demand evidence of such (I had explained previously that it is a pretty established legal concept with concrete examples).  Instead of arguing that the Governor was correct because Mathis did this, that or the other (because Mathis’ didn’t do this, that or the other), Hauser had only one avenue left.  And that was to claim that the entire affair was primarily political in nature and therefore not within the purview of the State Supreme Court.

Hauser appealed to the Separation of Powers doctrine that says none of the major branches (Executive, Legislature, Judiciary) is allowed to review the behavior of the others that doesn’t pertain to their area of responsibility.  For example, the Judiciary would only intervene and review the behavior of the Executive or Legislature if their actions violated the constitutional law or overstepped the bounds of Separation of Powers.

The Court did not buy this argument that it was political.  While they have not yet released a detailed opinion, here’s what I suspect they are going to say.  The IRC was originally created by ballot initiative 2000, which is a form of direct representation that bypasses the traditional Legislative process but still results in legislation and  therefore belongs under the Legislative Branch.  If the IRC is true “legislation” 4 and 1) it defines what the standards for removal of the Chairperson (i.e., gross misconduct), and 2) it’s overall intention was to remove politics from the redistricting process then any of the other Branches who seek to intervene and/or control the IRC must follow that specifics of that law.

When the Governor removed Mathis, it started classic battle between two branches of governments–the Executive v. the Legislature (as expressed by the will of the people in this case).  That kind of conflict is precisely what the Founding Fathers created the Judiciary to handle.  And that’s why Hauser’s, or I should more accurately say, Gov. Brewer’s argument was laughable.  A Governor removed the head of a Commission without meeting the legal standard required for that removal.  Gov. Brewer overstepped the bounds of her office, WAY overstepped and I’m glad that she got her wrist smacked for it.  If it had been a Democratic Governor, he or she would be impeached as a result of such behavior.  Or for that matter, could you imagine if President Obama had done something like this?

FOPGOX would have been wailing about how the President is just ripping up the Constitution and destroying the country.  Limbaugh would be making some kind of extremely offensive joke about it, somehow managing to tie in race to the situation.  Congressional right wing extremists like Allen West (R-FL), Steve King (R-IA), and Louie Gohmert (R-TX) 5 would be proposing impeachment, forming committees to investigate, and on stump speeches would be calling for armed insurrection.  Scum like Ann Coulter, Glenn Beck and Bill O’Reilly would add it to their “proof” that Democrats hate America and include it as a chapter in their next best selling book.  Finally, and saddest of all, those on the extreme left would use it as an excuse to claim that President Obama “is just like Bush”.

But in Arizona, nothing of the sort will happen.  Gov. Brewer simply lost a court case.  She is embarrassed (maybe) and the taxpayers are out some serious dough to pay the lawyers, court costs, etc, etc.  And the business of the state, the stuff that REALLY matters like jobs, gets ignored.   I hope that I’m wrong and Gov. Brewer faces something more serious than this wrist slap, but I doubt it.

Notes:

1 This judgement restores my faith in Arizona for the nonce.

2 The only caveats being if the client asks them to do anything illegal or unethical.  Under these circumstances an attorney can refuse to do as the client asks.

3 Obviously a distinction Gov. Brewer does not understand.

4 No one was claiming that the law was illegal or unconstitutional; although one might claim it wasn’t well written (as many ballot initiatives tend to be poorly written in the first place)

5  If you think I jest, read up on the crazy things these guys have said.  They are downright frightening people.

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