By Chris Bonneau

The Detroit News, June 19, 2012

Recently the Judicial Selection Task Force testified before the Michigan Legislature on its recent report, which makes several recommendations regarding judicial selection. The most troubling aspect of the report is that the majority of the committee favors, though does not formally recommend, eliminating judicial elections.

Over the last year, a national debate has been brewing over how states select their Supreme Court justices. This debate is not unfamiliar to Michigan, where the people directly elect their judges. Nor is this sudden interest in judicial selection a coincidence.

Several powerful figures have recently coordinated to oppose judicial elections, including the American Bar Association, the American Judicature Society and former Supreme Court Justice Sandra Day O’Connor, who serves as the honorary chair of the Judicial Selection Task Force in Michigan. They tout the commission-based method, “the Missouri Plan,” as an alternative to the partisanship of judicial elections.

But to assume that it eliminates politics or results in a more balanced judiciary is erroneous.

Political scientists have studied judicial elections for quite some time, and plenty of empirical evidence to quantify the impact of elections is available. After going through that data, I have found the following:

Elections do not prompt voters to view judicial institutions as less legitimate. From 2008-09, professor James Gibson of Washington University conducted a series of survey experiments and found that while legitimacy concerns may be raised by particular campaigns, those concerns are not raised when candidates engage in policy talk, negative ads or other ordinary incidents of a judicial race.

There is no discernible difference in quality between judges who are elected and those who are appointed. Recently, law professors Stephen Choi, Mitu Gulati and Eric Posner found that there was no difference between elected judges and appointed judges in terms of quality and output of opinions. They also found that elected judges are no less independent than appointed judges.

Though the authors of the study were cautious in interpreting their findings, any fair reading suggests that elected judges are at least equal to appointed judges in quality and independence.

Campaign spending is key to providing voters with a meaningful choice. Despite the many criticisms of campaign spending, my research has shown that the more money challengers spend trying to unseat an incumbent, the better they perform with the electorate. Limiting campaign spending with strict campaign finance laws also limits competition and increases the advantage of incumbency.

The Michigan Supreme Court plays a very important role in the lives of Michiganians, impacting everything from property rights and business transactions to criminal policy and traditional family policy. So it is extremely important that voters trust that their judges are adhering to the rule of law.

To suggest that elections are unable to deliver a fair court is just not supported by the data. Michigan’s justices and judicial candidates face incentives to be more open, transparent and accountable than if they were being selected behind closed doors by an unelected and unaccountable nominating commission, where special interests and political insiders would dominate.

Chris Bonneau is a professor of political science at the University of Pittsburgh.

 

Courts rightly required to be user-friendly

On April 24, 2012, in Editorials, Newsroom, by youngadmin

New standards hold courts accountable for being accessible, moving cases promptly

The Detroit News

Chief Justice Robert Young

Michigan’s court system is clearly part of the reinvention of state government that is now under way. State Supreme Court Chief Justice Robert Young Jr. is driving the courts toward change that appropriately emphasizes efficiency, transparency and — most of all — providing good service to the folks whose tax dollars support it.

These ideals are hardly revolutionary in other sectors, but let’s face it, the courts long have had an image of stodginess, obscurity and resistance to change. As Young noted in the just-released Michigan Supreme Court annual report for 2011, judges and courts often have stuck with traditions that keep them doing things in comfortable ways that don’t always best serve the public.

The most-noted evidence that the court system is on board with the reform agenda is legislation now passed and signed by Gov. Rick Snyder that over time will eliminate 36 trial court judgeships. That’s based on leadership from the State Court Administrative Office, the administrative arm of the high court, which last year recommended slashing even more judgeships — 45 — along with four Michigan Court of Appeals seats because of a declining population and court load.

That’s an important sign it’s a new day here. Lawmakers had added 30 posts to the judiciary going back to 1989 and, in the past had resisted proposed cutbacks. The reductions will save an average of $140,000 in pay per judgeship and around $6 million a year overall.

The wisdom of these moves is illustrated in the new annual report, which shows that cases continue to decline in every category and at each court level. For example, in district courts, the lowest and busiest level, the number of cases declined to 2.6 million, a drop of 200,000 from 2010 and more than 700,000 below the high of 3.35 million in 2003. Last year, there were 55,435 criminal cases, down from 58,325 in 2010. According to the report, the State Court Administrative Office also is continuing to push circuit, probate and district courts toward concurrent jurisdiction plans in which a judge from one type of court can be assigned to another court, as needed. These courts also share administrative functions.

The judiciary also is streamlining through technology. Courts increasingly are receiving and sharing files electronically, using videoconferencing to conduct hearings and accepting payment of tickets online.

More importantly as far as citizens are concerned, the courts are being held to efficiency goals and pretty much meeting them.

The goal for divorces and domestic relations cases, for example, is resolution within 364 days. According to the report, that target was met in 91 percent of all cases during 2011.

Ninety-six percent of circuit court felony cases were adjudicated within 301 days — important because studies have shown that swift, certain justice is a key crime deterrent.

Quality of justice is hard to measure, Chief Justice Young says, but it is possible to keep track of such factors as the length of time it takes to complete cases; or how often potential jurors are summoned, only to sit waiting all day and finally be sent home unused.

Performance measures, common among businesses in the private sector, now are coming to the courts. That’s a necessary and welcome change.

Detroit News: Trim Unneeded State Judgeships

On August 19, 2011, in Editorials, by youngadmin

State judges come up with responsible plan for downsizing court seats

The Detroit News

Published August 18, 2011

Michigan’s court system is saying it should be downsized. The court system’s administrative arm has come up with a recommendation that 45 trial court judgeships and four seats on the state Court of Appeals be eliminated. Michigan Chief Justice Robert Young has said the various state judges’ associations all agree on the findings. Such agreement is rare and should prompt legislative action.

As Young noted, the court system can only make recommendations to the Legislature about the number of judgeships; state lawmakers have to actually pass legislation to make the cuts.

The full picture is that there is an imbalance in the assignment of judges. While the State Court Administrative Office found — based on caseload studies — that 45 judgeships could be eliminated, there is a shortage of about 31 judges in other jurisdictions. However, given the financial condition of both state and local government, the administrative office is not recommending the creation of new slots for judges.

And in fact, the administrative agency and the judges themselves note that with changes in the law so that different judges can hear more kinds of cases, and with the proper use of technology, all of the new judgeships won’t have to be created.

Chief Wayne Probate Judge Milton Mack, a member of a committee looking at judgeships, in a Detroit News column written as the new evaluation process was beginning earlier this year, suggested that neighborhood district court judges could be empowered to appoint guardians for children in some cases, avoiding a trip to the county seat and the local probate court.

Investments in technology have allowed his court to shed more than 40 employees over the past decade while improving service, Mack said.

The administrative office’s Judicial Resources Report analysis notes that statewide, new case filings decreased in both trial and appellate courts over the last several years.

Elimination of all 49 judgeships could eventually lead to an estimated annual savings of more than $7 million in state and local expenses. The state pays a judge’s salary, but local jurisdictions cover pay and benefits for judicial secretaries, clerks and other aides.

The savings wouldn’t occur immediately. The plan is to eliminate the court positions by attrition when the judges leave the bench or retire. But having the plan outlined in law would preserve the savings when the opportunity arises. Governors sometimes want to reward their friends, and a judicial appointment is handsome way to do so.

As Young noted, it isn’t often that a branch of government suggests that it be shrunk, and then comes up with its own plan for making it happen.

State legislators should act quickly to take the judges up on their recommendations.

Original article available at: http://www.detnews.com/article/20110818/OPINION01/108180338/1008/OPINION01/Editorial–Trim-unneeded-state-judgeships

 

By Paula Holmes-Greeley, Muskegon Chronicle

Published Friday, July 8, 2011

New jury rules recently approved by the Michigan Supreme Court have the potential to help those serving on juries become better informed about the cases they are hearing and more active participants in the trial — and that should lead to better informed jury decisions.

Court officials say the changes should be especially helpful during lengthy trials, when jurors may find it hard to keep track of evidence and their attention may begin to wander.

The new rules could even improve citizen response to what often is a dreaded jury duty notice.

Frustration with the jury system is long-standing. Everyone wants their day in court, but very few are happy about having to help someone else get his or hers. When people feel like they are an important part of the process, they’re more likely to want to participate. Michigan jury reforms have the potential to create that kind of courtroom atmosphere.

And that’s all good. With the current debate over the decision in the Florida murder trial of Casey Anthony, it’s important that courts work to create confidence in our jury system by giving jurors the tools to make sound decisions and not handcuffing them with archaic procedures.

Michigan is a late arrival to the jury reform process. More than 30 states were discussing changes before Michigan began looking at proposals.

When announcing the reforms June 29, Michigan Supreme Court Chief Justice Robert Young Jr. described the changes as “designed to reflect how adults learn and make decisions.”

Jurors will now be encouraged to take notes and to ask questions of the witnesses through written requests reviewed by the judge and attorneys. Jurors also will be given reference books containing witness lists, key exhibits, explanations of the law and preliminary jury instructions.

In civil trials only, jurors will be allowed to discuss evidence and testimony during breaks while the information is fresh in their minds, something that is still forbidden in criminal trials. In those trials, jurors will not be able begin deliberations until the traditional time — at the end of the trial.

It’s important to note the jury reforms were tested in Muskegon County and 11 other counties during a two-year pilot project beginning in 2008. Many area citizens participated in trials using the reforms and found them to be effective, according to Muskegon County Circuit Judge Timothy Hicks. Hicks told The Chronicle that he’s pleased that some of the new procedures he tested are being adopted.

Hicks also wrote an article, “The Jury Reform Pilot Project — The Envelope, Please,” for the June issue of the Michigan Bar Journal. The report is based on written surveys that jurors and attorneys filled out after each trial in each of the 12 courts during the two-year trial period and on Hicks’ own courtroom experience.

His verdict: Jurors liked the reforms; trial lawyers didn’t. Hicks urged support for the changes, which will take effect in September, and The Chronicle Editorial Board joins him.

The court system and the opportunity to have your case decided by a jury of your peers is one of the most revered rights of this nation. Based on the number and popularity of court related TV shows — both fictional and reality — it’s clear there’s plenty of interest in the judicial system. The problem with TV is it’s all over in 30 minutes and viewers receive plenty of background that jurors aren’t getting.

Being a juror is a very demanding job. Making it easier for jurors to understand procedure and to participate in the process can only improve the system. Allowing jurors to use the tools and approach they would employ in a normal decision-making process can only improve the outcome.

 

June 16, 2011

By Dan Pero

While Sandra Day O’Connor’s “merit” selection powwow at Wayne State University earlier this week was heavily stacked with anti-election activists, former Michigan Chief Justice Clifford Taylor managed to crash the party, delivering a thoughtful, measured speech that ruthlessly demolished the arguments behind “merit selection.”  It’s important reading for supporters of democracy in judicial selection, and I’ll try to get a link to the full speech, but here are some highlights:

  • All Judicial Selection Methods are Political:  “Any state appellate court judicial selection method – gubernatorial appointment with or without legislative confirmation, partisan or non-partisan election or the currently hyped and cleverly named, merit selection – can and does create the potential for the selectee to feel, or be perceived to feel, beholden to the selector.”
  • Today’s Judges Are Just Impartial Arbiters of the Law:  “In the last 40 years or so state appellate judges increasingly have made policy, not just by modifying the common law as they traditionally have, but also by, for the first time, deciding disputed moral values questions such as same sex marriage and precluding, on little more basis than they think they are wrong-headed, certain economic regulations such as tort reform, product liability reform and medical malpractice reforms of various sorts.”
  • “Merit” Selection Isn’t About Merit:  “Merit selection advocates claim that it will get politics out and focus only on the applicant’s credentials….The problem however is that looking at these things alone won’t get you anywhere because almost invariably all the applicants will have good credentials … even if diligent efforts are made to use just these merit templates, it quickly becomes clear that it is reckless to say that because one applicant, many years ago, had a 3.5 GPA and another a 3.6 GPA in different law schools or that, later in life, one was a Boy Scout leader and the other a Food Bank volunteer one is “merit qualified” and the other isn’t.
  • “Merit” Commissions Inevitably Focus on Politics/Ideology:  “In practice what is to be expected is that the merit selection panel, having found no actionable differences in credentials, will be focused on where the applicant is on controversial questions like tort reform, medical malpractice liability reform, sexual liberty issues, religious expression in the public square, pornography, and that perennial favorite that has dominated judicial selection matters across the country since 1973, abortion, as well as many other similarly edgy traditionally political issues that are increasingly coming before our courts.”
  • The Evidence is Clear:  “… when we look at how merit selection has worked in Missouri and Tennessee it is hard to deny that they have been doing politics not merit. [Vanderbilt Law] Professor [Brian] Fitzpatrick found that judges picked by the so-called non-partisan selection commissions overwhelmingly leaned Democrat. His findings, as summarized by the Wall Street Journal on April 18th, 2009, were that ‘Since 1995 in Tennessee, 67% of appellate nominees more often voted in Democratic primaries, compared to 33% who voted more often in Republican primaries. As to Missouri, “of the roughly half of the appellate nominees who made campaign contributions some 88% donated to Democrats while only 12% went to Republicans.’ And if this data isn’t convincing that the Missouri picks were really based on politics and not merit, then how can you explain the fact that three recent Chief Justices had extremely political backgrounds. Ronnie White was a high profile legislator, Michael Wolff was a former Chief Counsel to a Governor as was Edward Robinson. These don’t sound like platonic guardians of the law to me.”
  • Judicial Selection is Political Because There is a Divide over the Role of Judges:  “… what any evaluator of any selection system has to come to grips with, I believe, is the inescapable reality that there is a great divide in this country on how powerful judges should be in the making of public policy. This almost invariably will color any decision on the selection of judges including those made by merit selection committees….It is this split that explains the titanic battles of the last 25 years played out in the U.S. Senate over the confirmation of federal judges, and the fractious state supreme court justice campaigns of recent years across the nation. Clearly, these are not fights over credentials. They are fights over the direction of public policy and who will make it….To claim to somehow convert this fundamental split over the proper judicial role in a representative democracy into a polite, almost scientific, inquiry as to whether the candidate got an A or B in Contracts or volunteered enough at the United Way is an undertaking both foolish and hopeless.”
  • “Merit” Selection Advocates Want to Push Courts in Their Ideological Direction:  “I believe the sophisticated folks who argue for merit selection really know that merit is just an attractive ruse and what is really going on is merit selection gives them the best chance to get judges on the bench who share their political and policy views.”
  • Elections are Open, Transparent:  “… as there will be this kind of politics involved in the selection decision, however made, the only question is do we want it to occur openly and robustly in the public square with all the people deciding which candidate has merit, broadly defined to include these essentially political matters, or behind closed doors with clearly bogus proclamations that the ‘merit process is just looking for the best person using impartial measures.’”
  • Election are a Safeguard Against Imperial Courts:  “Public elections, allowing all voters to decide who should be the state’s appellate judges, while not flawless, are, I believe, the best of the alternatives. Voters can decide if the candidates are too close to their backers and who has merit. Whatever else may be said in evaluating these systems, the final measure should be that elections have the virtue, to a greater degree than any other system, and surely more than merit selection does, of allowing the people to rise up and change their courts if they wish to. Such power for our citizens is entirely consistent with this nation’s approach to governance and should not be abandoned precipitously for an alternative system that casually deals them out.”
  • “Merit” Selection is Under Fire:  “There are serious efforts to abolish the merit selection systems in Missouri, Kansas, Tennessee, Florida and Oklahoma and in Iowa to a lesser extent. In Arizona, the legislature just put a ballot measure on the 2012 ballot that will reduce the bar’s influence. Moreover, last year in Nevada, with Justice O’Connor’s active involvement to assist in its passage, Question 1, to replace the state’s elections system with merit selection, was overwhelmingly defeated.”

Carrie Severino over at Bench Memos does an excellent job summing up and critiquing O’Connor’s remarks here.

 

By Frank Beckmann

Originally published in The Detroit News, June 17, 2011

We’ve witnessed a breathtaking power grab by the Obama administration and its allies, ranging from health care, to student loans, to environmental rules, to banking regulations, among others.

Now these same proponents are taking their crusade to the state level and Michigan is their latest battlefront.

The issue is the election of state Supreme Court judges, a responsibility left to the decision of voters in 35 states including our own.

Fifteen other states use a so-called merit system for choosing judges, a process begun in Missouri in 1906 and currently under review by eight of the states, which have some misgivings about their earlier decisions to follow the lead of the “Show Me State.”

But even while some states consider fully entrusting their voters to again choose judges, Democrat party supporter George Soros — no fan of America as we know it — has launched a $45 million effort through his Open Society Institute to convince states to take away voter choice in favor of the system that allows lawyers to choose which judges are best for the electorate.

In Michigan, the campaign began late last year with the formation of a 24-member Judicial Selection Task Force, headed up by Michigan Supreme Court Justice Marilyn Kelly.

The group organized a forum at Wayne State University this week and brought in keynote speaker Sandra Day O’Connor, the former U.S. Supreme Court Justice who has become the national megaphone for the Soros effort.

Her address echoed the sentiment of a majority of the stacked list of participants who want to convince Michigan voters that the elite legal community is far more capable than average citizens of selecting judges to our highest court.

Missouri and other states that do not allow voters to choose judges to their highest court employ a basic form of selection where a group of lawyers recommends a handful of candidates for gubernatorial appointment and voters periodically are allowed to determine if those incumbents should remain on the bench during retention elections.

Three Iowa justices were voted out last year, but that’s a rarity, according to opponents of the method.

If a governor doesn’t like any of the choices, the responsibility for selection reverts to the unelected panel, with its own special interests, that made the recommendations.

O’Connor, like other supporters of the inappropriately named merit system — more appropriately called a crony system — claims that courts can only remain fair “as long as we keep political influences and cash out of the courtroom.”

Soros spokesman Bert Brandenburg has bemoaned the influence of campaign contributions in judicial races, claiming, “Much of this money is from lawyers and interested groups who appear before these candidates in court.”

But the merit system allows lawyers — who would “appear before these candidates” — to have a direct influence on the selection of the judges.

There is no way to keep politics out of judicial selection — especially if an elected governor is making the choice — under any system, none of which is perfect.

But the Michigan method of using a popular vote to choose justices is far preferable and much more transparent than a private selection process.

Nationally, the president has the responsibility of naming U.S. Supreme Court justices but his choices are thoroughly vetted by the Senate, whose members are elected by the people.

The Soros/O’Connor/Kelly plan to strip Michigan citizens of their franchise offers no such safeguard.

Rather than removing politics from the system, it simply cloaks the politics in secrecy and empowers a select few to limit the field of candidates for the most important court in the state.

Michigan voters should be prepared to witness an accelerated campaign by Soros and his surrogates to change state law and bring their unmeritorious scheme to our state.

This is a campaign that will not be easily defeated.

Proponents of removing voter choice were defeated in Nevada in November.

It was their third effort to change that state’s laws.

One hopes Michigan voters will make the same decision when they’re eventually asked to do the same.

Frank Beckmann is host of “The Frank Beckmann Show” on WJR-AM (760) from 9 a.m.-noon Monday-Friday. Email comments to letters@detnews.com.

 

By The Grand Rapids Press Editorial Board
June 9, 2011

That mantra in Michigan right now — reinvention — should include the court system. A good blueprint for change can be found in a report released this spring by the State Bar of Michigan’s Judicial Crossroads Task Force.

The report offers some recommendations on how to restructure an antiquated justice system to meet needs. Those recommendations include a reduction and redistribution of judges, a statewide technology system, a consolidation of court functions and a revamping of the broken method of defending the poor.

The aim is to save money — something judges and lawyers understand has to be done — better serve the public and provide for the needs of a shifting and aging population. The goals mesh with those of Michigan Supreme Court Chief Justice Robert Young, who has advocated shrinking the number of judges. That point, in particular, should be heeded by the Legislature, which in the past has been reticent to recommend judicial downsizing.

Each judge costs the state about $175,000 a year. Local taxpayers pay about $300,000 on top of that. Recommendations due in August from the State Court Administrative Office — an arm of the Supreme Court — will likely confirm that some parts of the state have too many judges. Past reports from the office have said as much, though changes have not been made because lawmakers typically protect courts in their own districts.

Over the next five to seven years, about 50 percent of the state’s judiciary will retire. That will provide an opportunity to assess and decrease the number of judges through attrition. The last Court Administrative Office report, issued in 2009, recommend Michigan shed 14 of its nearly 600 trial court judges and reduce by four the 28 Appeals Court judgeships.

The next report may recommend even deeper cuts. Michigan lost population over the past decade. Considerable population shifting has occurred within the state. Some areas don’t need the judges they have, based on caseload and the number of people being served.

Technology in the courts is outdated and uncoordinated. Lawyers and citizens travel to and from buildings to file papers and read hard-copy files that should be accessible remotely via secure computers. Defendants are dragged to and from court in police cars when some of their proceedings could be conducted via video conferencing. Translation for a growing number of non-English speaking defendants could be handled with greater efficiency and uniformity through videoconferencing, too. Changing these antiquated technologies would require investment. But it would be a good investment over time because of increased convenience and reduced burdens for court employees.

The report points out the duplication in the current court system and the opportunities to consolidate functions. Barry County consolidated court functions and was able to save up to 15 percent on costs.

One key recommendation that should not be overlooked by lawmakers is the need to fundamentally change the system for defending poor people. The U.S. Constitution grants indigent defendants the right to representation. However, a county-by-county system in the state leaves the quality of that representation far too dependent on local whims. That costs taxpayers money through increased appeals and proceedings, and is far more costly to wrongly convicted defendants. The report recommends statewide standards for indigent public defense. The Legislature should enact such a system.

Gov. Rick Snyder and lawmakers have undertaken reforms in education, local government and other spheres. This report makes a compelling case for bringing the same judgment to bear on Michigan’s courts.

E-mail a letter to the editor for publication in print: pulse@grpress.com Please keep letters to less than 200 words and include your full name, home address and phone number.

 

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:

http://www.detnews.com/article/20110607/MIVIEW/106070384/1467/miview01/Beware-judicial-reformers

 

Grand Rapids Press

At times in recent years, the Michigan Supreme Court has been bitterly divided. So it was nice last week to see all seven justices agree on something — a potentially partisan case — and in the process correct a highly political decision from an earlier court.

In the ruling last week, all the members of the state’s high court agreed that a judicial appointment made late in Gov. Jennifer Granholm’s final term was valid and will stand. The ruling upholds the clear meaning of the Michigan Constitution, which bestows on the governor the power to make appointments when a court vacancy occurs.

The vacancy in this case was on the 54-A District Court in Lansing. In late November of last year Gov. Granholm appointed then-District Judge Amy Krause to a spot on the Michigan Court of Appeals. Ms. Granholm appointed Hugh Clarke to fill Judge Krause’s district court slot.

Michigan Attorney General Bill Schuette challenged Judge Clark’s appointment on the grounds that it conflicted with a 1982 state Supreme Court case. In that 1982 case, a plurality of the high court invalidated the appointment of Dorothy Comstock Riley to the Supreme Court.

Gov. William Milliken appointed Ms. Riley under circumstances similar to those in this case, as a lame duck after the election of his successor, Gov. James Blancahrd. However, Mr. Blanchard challenged the appointment. The court removed Ms. Riley from the bench. Voters later returned her.

The Michigan Constitution says a judicial vacancy “shall be filled by the governor.” The constitution further specifies that “The person appointed by the governor shall hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs.”

Those are plain and straight-forward words and they affirm the Michigan governor’s power to make the appointment. All seven justices — hailing from the Republican and Democratic party — agreed with that assessment. Mr. Clark will serve on the District Court bench until Jan. 1, 2013.

The mystery is how a plurality of the Supreme Court in 1982 could have come to a contrary conclusion. The ruling was patently political, seeking to curb one of the constitutional powers of the governor’s office for partisan gain. This ruling should set to rest this question about the judicial appointment powers of the governor.

This is not to dismiss concerns about lame duck governors packing courts and boards in the waning days of office. Eleventh hour appointment blitzes by Republican and Democratic governors, and there have been both, are simple attempts to extend power beyond an elected term.

Still, it’s clear from the Michigan Constitution that those governors have the authority to make such appointments. That is one of the spoils of victory. This recent Supreme Court ruling affirms that power in a way that should leave no doubt.

 

Although the results of the April 5th Wisconsin Supreme Court election have still not been certified, the situation in Wisconsin provides many cautionary lessons for those who seek to reform Michigan’s system of judicial elections.

Many reform groups—including former Michigan Supreme Court Justice Betty Weaver—seek to impose public financing of judicial elections in Michigan.  Their theory is that publicly funded elections “take politics” out of judicial elections.  Those who wish to know whether that particular reform works need only look to Wisconsin to determine how naïve is the notion that restricting campaign financing of candidates removes the “politics” from judicial elections.  

In Wisconsin, there has been a titanic struggle over the Governor’s effort to rein in the cost of government.  His policy reforms were passed by the legislature.  Those who opposed these policies went immediately to challenge them in the courts.  The opponents also saw their chance completely to nullify those policies by seizing control of the Wisconsin Supreme Court by defeating conservative Justice Prosser.  His defeat and replacement by his challenger would have shifted the court’s majority from conservative to liberal.  Those opposing the Governor’s policy agenda dumped millions of dollars into the Wisconsin Supreme Court race in the waning weeks of the campaign to defeat Prosser.

While the “reform” regulations in Wisconsin severely limited the amount of money individual candidates like Prosser could spend on their own behalf, the independent third party groups were free to spent millions of dollars in trying to influence the election.  Thus, all the so-called Wisconsin “finance reforms” ended up achieving was making individual candidates powerless to respond to attacks by third party groups.

Here’s the reason why such all such reforms are silly:  The judiciary has seized control in America and has become a robust policy-making engine.  Picking who wears a black robe really matters

In such an environment, judicial selection is less about a lawyer’s credentials than deciding whether, as a judge, he will follow the rule law or not.  Ever since judges began misusing their institutional power to control the nation’s policy agenda, judicial selection has become an important question and political tool.  Thus, no “reform” is going to eliminate that political question or the incentive of political entities to try to affect judicial selection—however judicial selections are made.  

Especially now that the Michigan Supreme Court has returned to a majority of justices who follow the rule of law instead of their own personal policy preferences, discussions about “judicial reform” are going to become more robust in the coming months.  

As groups and individuals push their so-called reform agendas, Michigan citizens must ask themselves whether reformers are really seeking to stack the courts with judges who favor their own political agendas, rather than judges who will follow the rule of law.  Wisconsin’s recent Supreme Court campaign may provide some answers.

Maintaining the right to elect your judges is the only means to rein in those who have the power to deform your constitution and society.