Beware judicial reformers

On June 7, 2011, in Editorials, Newsroom, by youngadmin

By Jeffrey Hadden

Next week, the great and the good will convene at Wayne State’s Law School for a second symposium on how judges and justices should be chosen in Michigan.

Former Michigan Supreme Court Chief Justice Cliff Taylor, who favors electing appellate judges, will be one of the speakers. Retired U.S. Supreme Court Justice Sandra Day O’Connor, who favors the appointment of judges, will be another. This convocation of the great and the good will be the second such event at the law school. An earlier sessions was held in February.

While the intentions of many at the symposium will be good – for others, not so much.

For the last couple of decades, the history of the Democratic Party in this state, its elected officials and interest groups- most particularly trial lawyers- has been one of a ceaseless focus on regaining control of the Michigan court system by any means necessary. If its members aren’t careful, this symposium and the committee that sponsors it could be turned into a part of that process.

Matthew Schneider, chief of staff and general counsel of the Michigan Supreme Court, notes in the current Wayne State Law Review that while February’s symposium was ostensibly inclusive and balanced, the organizers convened a “private, VIP dinner on the evening of the symposium that was primarily limited to a select group of individuals with a similar political background.”

That background was organized labor and the Democratic Party.

A special task force on judicial selection was formed late last year by Democratic Justice Marilyn Kelly of the Michigan Supreme Court and Republican U.S. Court of Appeals Judge James Ryan. Currently, Michigan has a hybrid system in which governors have a free hand to appoint judges or justices to fill vacancies. When judicual seats are up at regular intervals, candidates run for office, just like candidates for governor or state senator.

As a result, roughly half the judges arrive on the bench by judicial appointment; the rest win election , either by circulating nominating petitions for the appellate court or being nominated at political party conventions for the Supreme Court. The partisan nominees then run on the non-partisan ballot.

Governors can set up any kind of informal processes they want to select judges for appointment; there is no formal involvement by the lawyers trade association, the State Bar of Michigan.

The ostensible cause of the formation of the task force, according to a statement by Kelly in a press release, was “the record spending and vitriolic advertising we saw in the 2010 Michigan judicial elections, especially the Supreme Court races.”

Of course, for real vitriol, it’s hard to beat the 2008 Supreme Court race, in which Taylor, nominated by the Republicans, was accused (falsely) of being “the sleeping judge.” He was defeated, probably as the result of that ad and the fact that a number of robo-calls were made in Wayne County identifying his opponent, Wayne Circuit Judge Diane Hathaway, as a Democrat during a year in which there was a pro-Democrat wave election that swept President Barack Obama into office. The Democrats gained operational control of the court in that election, and full control when Gov. Jennifer Granholm named a Democrat in the summer of 2010. But the Republicans regained control that November, with a campaign that stressed, among other things, GOP nominee Mary Beth Kelly’s Irish last name.

With all due respect to the great and the good members of the Judicial Selection Task Force, I don’t recall hearing so much about how terrible our system of electing judges when the Supreme Court was dominated by Democrats (and I have been at The Detroit News for 40 years.) It was only in the 1990s, when John Engler began placing a number of conservatives on the Court of Appeals and Supreme Court, that the judicial selection process has become such a big issue.

In 2008, Michigan Democratic Party dumped more than $1 million into a stealth campaign for a constitutional amendment, the so-called Reform Michigan Government Now proposal, that would have knocked a number of incumbent Republicans off the bench and made it easier for the Democrats to grab control of the courts. The party’s chairman, Mark Brewer, also spent most of that year lying about the party’s role in the failed power grab. (It was ruled off the fall ballot for violating the one-purpose rule for constitutional amendments.) He will be one of the speakers at next Tuesday’s conclave, which will mostly feature people who want to move to a merit selection system.

In most of the so-called merit system plans in the various states, the nominating committee is primarily made up of members of that state’s bar association. In other words, lawyers pick the judges before whom they will practice, with no interference from regular people. Who is providing the funds for Michigan’s Judicial Selection Task Force – at least for phase 1? The State Bar of Michigan Foundation!

Michigan voters ought to be very wary of a system that takes away their right to choose judges — or directly elect those who do.

Yes, elections are messy. And yes, contributions to candidates can create a conflict-of-interest problem. But so can the in-bred favor-trading and organizational politics involved in gaining the support of a state-bar-dominated so-called “merit” system. And at least elections are held in the open, where the politics, raw as they may be, can be seen and understood by citizens.

William F. Buckley famously observed that he would rather be governed by the first 100 names in the Boston phone book than the faculty of Harvard College. The same is true for judicial elections. Michigan voters can sometimes be absent-minded in their approach to choosing judges – but I suspect they would rather make that decision for themselves than turn it over to a committee of lawyers.

Particularly since, as conservative wag once noted, every organization that does not constantly strive to stay right-wing every day will become left-wing. Ultimately, a judicial selection panel will become dominated by left-wingers and trial lawyers.

Jeffrey Hadden is deputy editorial page editor of The Detroit News and a columnist for the View.

Originally published in the Detroit News, June 7, 2011: