Justice Bob Young

July 16, 2010

On Thursday, July 15th, the Lansing State Journal editorially suggested that we should change the method of selecting our Supreme Court Justices:

“If Michigan voters opt this fall to call the state’s first constitutional convention in nearly 50 years, a top task for delegates should be to junk the way the 1963 State Constitution selects Supreme Court justices.”

The LSJ joins a long list of people clamoring to change the way judges are selected in Michigan, including former Justice O’Connor and George Soros.

Why has judicial selection become a hot topic? The answer may be based on the question of who gets to control the judiciary – you, the People, or someone else.

In Michigan, since we became a State, the People have elected their judges.  Elite intellectuals hate this because they frankly don’t believe the “public” can be trusted to make intelligent choices about who should sit on our benches.  (What else would you expect from elites?)  Frankly, if all judges believed as I do that a judge’s constitutional duty is simply to follow the law by interpreting the words in our constitution and our statutes according to their ordinary meaning, then there might be less rancor or concern about judicial selection processes.  But about 50 years ago, the American judiciary transformed itself into an oligarchy of philosopher kings bent on transforming our society according to its own social and moral preferences.  It is this change that has caused the problem.

When judges aspire to be social engineers rather than interpreters of the law, their social, political and moral beliefs really matter.  And it correspondingly matters much more who gets to puts such persons on the bench.

At the federal level, judges are nominated by the President and given “lifetime” appointments with the “advice and consent” of the Senate.  We have observed the essential political nature of the federal judicial selection process in the vicious wrangling during the Senate confirmation process for Supreme Court nominees.  This is a very political process and properly so. The two political parties are fighting in the Senate over two competing visions of the judiciary: whether judges should be social engineers or follow the original constitution. This is the same question presented wherever judges are selected and it is a POLITICAL QUESTION of great importance to our constitutional Republic.

The LSJ conceded that the selection of judges is a political question no matter how it is accomplished:

“To be clear, there is no purely nonpartisan way to put people on the Supreme Court bench. An appointment process, after all, is controlled by a partisan governor and a partisan Senate.”

Interestingly, the LSJ offered no “solution” for what it believes is too political a process for selecting Justices in Michigan.  However, many calling for reform of this process, like Soros and O’Connor, are really supporting a lawyer dominated selection system they call “Merit Selection.”  In this system, a group dominated by lawyers selects the judicial candidates and usually offer up three that the Governor must choose among.  Former Missouri Governor Matt Blunt campaigned pledging to appoint conservative judges in his state. Once elected, he found out the hard way what happens in a “Merit Selection” system when lawyers get to make judicial picks:  He was stuck with all liberal choices.

Let’s be honest.  Political campaigns are messy.  But I think that it is important for those of us who wish to sit on your courts to explain to you what our judicial philosophies are: do we want to transform our society according to our own social, political and moral beliefs or are we “rule of law” judges who will follow the law?  We need to meet you and you need to meet us.  Having candidates meet the voters is one of the most therapeutic activities that can occur in a Republic.

So beware of calls for reforming judicial selection processes in Michigan – especially in a process that no one knows how it will all turn out.  Make the so-called reformers tell you what they really want, but I suggest that you hang onto your right to vote for judges in Michigan.  There is no other check on those who have the power to transform your constitution and our society by personal whim.

Check out more coverage at American Courthouse.