I recently returned from Turkey, where I was honored to serve as a speaker at a conference celebrating the anniversary of the founding of their Court of Jurisdictional Disputes. Turkey is currently in an interesting and possibly tumultuous time in its history, with a recent election to decide whether to embark as a non-secular nation in line with its current-President’s wishes or to remain on the secular, rule-of-law path it has maintained for approximately 70 years. What follows are the (lightly edited and redacted for space) remarks I gave to the members of the Turkish Judiciary at that conference:

I have read the Turkish Constitution but wish I were a better informed student of Turkish government. Instead of attempting to address the intricacies of the Turkish Constitution today, I thought I would address something more familiar to me—America’s own experiment with the republican form of government—in hope that it may have bearing on your own experience and aspirations.

In 1787, following what we refer to as the Revolutionary War to shed Britain as our colonial ruler, prominent members of our Founding Generation from each of our 13 colonies met to determine whether they could create a national government to unify the 13 colonies that, to that point, had functioned as independent countries under British rule. Luminaries such as Dr. Benjamin Franklin and George Washington were members of that effort we refer to as the Constitutional Convention.
At the conclusion of the Convention, a woman approached Dr. Ben Franklin and asked: “Well Doctor, what have we got: a republic or a monarchy? Franklin replied: “A republic, if you can keep it.”

“A republic, if you can keep it.”

Those are words everyone committed to a republican form of government must heed. As a judicial representative of the world’s longest surviving republic, I know that a republican form of government is no more than a construct. It is a commitment to a constitution so that all whom it protects are entitled to no more or less than the rule of law set forth in that document.

Even our experience with this republican form of government in the United States has been fraught with perils, with cycles of uncertainly. Colonialists shared a common language—English—and a number of British customs and values. But, unlike the nations of the world at the time, America, even in colonial times, was a nation of immigrants with no singular cohesive ethnic heritage. What our colonial forefathers shared was a commitment to the liberty of their fellow citizens to pursue their personal goals unfettered by intrusive government.

Our Founding Generation, having thrown off the yoke of British rule, was extraordinarily distrustful of power, so the national government they created was designed to limit and check federal power to preserve the liberties of its citizens. As such, the 13 colonies that cherished their individual sovereignty ceded to the federal government only enough power to protect them from foreign powers and regulate the relationships between themselves.

Thus, we have in the United States a federal government of specific and limited enumerated powers while the colonies (now states) retained sovereignty within their borders. This is the concept of “federalism.” Many foreign visitors are surprised to learn that there are 51 sovereignties in the United States—a federal government and 50 state governments, each sovereign within its own sphere.

In addition, the federal government was divided into three branches—executive, legislative and judicial—and the responsibilities of each branch was exclusive and served as a check against the other two. This is the concept of “separation of powers. (The Turkish constitution has a similar separation of powers feature.)

We in the United States, have, over the years, struggled to maintain the balance of powers spelled out in our constitution. Sometimes, the power relationships between the three branches of the federal government have shifted as has the power relationship of the states to the federal government.

For example, we fought a Civil War that challenged the power relationship between the states and the federal government. More recently, that battle rages on in litigation brought by the states against federal programs dealing with immigration and healthcare policies. But we have been fortunate in the United States that none of these power shifts has remained unchecked for long without resolution.

If I were to speculate on why this general balance of power has been maintained for over 200 years I would suggest that our citizens, like the Founding Generation, are suspicious of government power. The desire to just be left alone and unfettered by intrusive government remains a dominant character trait among our citizens—even those recently arrived in our country seem to acquire this instinct. Interestingly, this distrust of government has been coupled with an abiding commitment to the rule of law—the idea that everyone, however high or low born, is entitled to be treated the same under law—is deeply rooted in our American political culture.

So, even with such an evanescent concept as a “republican form of government,” and the tendency of government power to aggregate and corrupt, we in the United States, have managed, in Dr. Ben Franklin’s admonition, to “keep it” for more than 200 years. That is the challenge of every people who aspire to live free.

 

LANSING, MI, February 27, 2013 – Hon. David F. Viviano, appointed to the Supreme Court today by Governor Rick Snyder, is “a man of unimpeachable integrity, an exceptional trial judge, and a recognized leader on the bench,” Chief Justice Robert P. Young, Jr. said today, reacting to Viviano’s appointment to the Supreme Court by Gov. Rick Snyder. “He is a welcome and wonderful addition to this Court.”

Young added, “Justice Viviano is uncommonly bright and learned in the law. But it is not his legal ability alone that makes him an outstanding jurist. He also knows that the role of judges is to interpret the laws, not to make them. He understands the deference due to the legislature as the body that expresses the will of the people through legislation. He is committed to following the rule of law wherever it leads him.”

Viviano, who has served as chief judge of the 16th Judicial Circuit and Macomb County Probate courts for the past two years, also brings a “forward-thinking perspective to this Court, demonstrating the kind of innovation that is so critical to the future of our justice system,” Young added. “My fellow justices and I entrusted then-Judge Viviano with the oversight of one of the largest and busiest circuit courts in the state, because my fellow justices and I had confidence in his abilities and leadership, and he did not disappoint.”

In 2012, Viviano was among those honored, along with the Michigan Supreme Court, with the G. Thomas Munsterman Award for Jury Innovation by the National Center for State Courts. Viviano and 11 other judges were selected by the Supreme Court to test a comprehensive package of jury reforms in a 2010-2011 pilot project; the Supreme Court adopted many of the reforms in September 2011. Viviano also headed the 16th Circuit’s e-filing project and advocated for other technological improvements to court services.“

Justice Viviano’s experience will help the courts use evidence-based practices to improve public service,” Young stated. “As a branch, we will be using performance measurement and technology to make the courts more responsive and efficient. Justice Viviano’s knowledge and perspective will be invaluable as we continue these efforts.”

Before being elected to the 16th Circuit Court in 2006, Viviano was in private practice with the law firm of Viviano & Viviano, PLLC and also served as city attorney for the city of Center Line. He previously practiced law with Dickinson Wright PLLC in Detroit and Jenner & Block LLC in Chicago. He is a summa cum laude graduate of Hillsdale College; he earned his law degree from the University of Michigan Law School.

Michigan Supreme Court
Office of Public Information
 

Chief Justice Young with Governor Snyder after the Governor signed the Judicial Resources Recommendation Bill, February 28, 2012.

JUDICIAL RIGHT-SIZING BILLS PASS HOUSE, HEAD TO GOVERNOR FOR SIGNING; CHIEF JUSTICE ROBERT P. YOUNG, JR. PRAISES LEGISLATORS FOR ‘DOING THE RIGHT THING FOR THE COURTS AND FOR THE TAXPAYERS’

LANSING, MI, February 14, 2012 – State legislators who passed bills to cut unneeded state judgeships came in for praise from Michigan Supreme Court Chief Justice Robert P. Young, Jr., as the last of the bills passed the House today.
Approved by the Senate last week, the bills now head to Governor Rick Snyder for his signature.

“The legislators are doing the right thing for the courts and for the taxpayers,” said Young. “In politics, it’s easy to grow the size of government, but it takes political courage to reduce it. These legislators showed their courage and their common sense.”

The Senate and House both overwhelmingly passed House Bills 5071-75, 5093-95, 5101-04, and 5106-07. If signed by Snyder, the bills, together with legislation already signed by Snyder, would cut 36 state trial court judgeships by attrition. “This is the largest cut in judgeships ever accomplished in the United States – it is unprecedented,” Young said.

When complete, the cuts will save the state approximately $6 million per year. The state will save about $750,000 by the end of 2012 from five open judicial seats that will be eliminated by the legislation.

The bills are based on the Judicial Resources Recommendations, a 2011 report issued by the State Court Administrative Office, the administrative agency of the Michigan Supreme Court. The report called for cutting 45 trial court judgeships in courts where the workload could be handled by fewer judges.

Young noted that SCAO has recommended cutting judgeships for many years. “But past Legislatures weren’t inclined to act,” he said. “The Senate and the House have taken a much-needed step by cutting judgeships that are no longer justified by the workload. This right-sizing of our judiciary is the front edge of reforms we need to make for a more service-oriented and efficient court system.”

Young said that the Supreme Court unanimously supported the 2011 Judicial Resources Recommendations and that the Michigan Court of Appeals, the Michigan Judges Association, the Michigan Probate Judges Association, and the Michigan District Judges Association also endorsed 2 the findings. He also credited the State Bar of Michigan for calling for setting the number of judgeships based on workload.

SCAO, the Supreme Court’s administrative agency, issues a Judicial Resources Recommendations report every two years. For more information on the 2011 report, visit http:/www.courts.michigan.gov/supremecourt/Press/2011JRR.html.

– Michigan Supreme Court Public Information Office, February 14, 2012

 

On August 17, 2011, Chief Justice Robert P. Young, Jr., appeared on the Frank Beckmann radio show to discuss the release of the Judicial Resources Recommendations report.  You can listen to the entire 13-minute interview here: 

http://www.wjr.com/FlashPlayer/default.asp?SPID=34613&ID=2264008