News and analysis from The Center for Michigan • http://thecenterformichigan.net
©2014 Bridge Michigan. All Rights Reserved. • Join us online at http://bridgemi.com

Original article URL: http://bridgemi.com/2012/10/michigan%e2%80%99s-%e2%80%98supreme%e2%80%99-election-is-a-scandal/

Peter Luke:
Eye on the Capitol

Insights into the inside workings of Michigan's state government from a veteran newspaper correspondent.

Michigan’s ‘supreme’ election is a scandal

Markman, O’Brien, Zahra, McCormack, Johnson and Kelley could be a law firm for all voters know about them, instead of the six party-nominated candidates for the Michigan Supreme Court on the non-partisan section of the Nov. 6 ballot.

As a result, too few voters understand, or likely care about, the blatant contradiction in that sentence: That the candidates seeking to fill three seats on the seven-member court this fall are partisan enough to be selected at Democratic and Republican party conventions, but are being presented to voters as having no party affiliation.

From the selection to the candidates, to the manner in which they appear on the ballot, to the financial means by which their campaigns are waged, a Michigan Supreme Court charged with finding the truth in dispensing justice is re-assembled every two years through an electoral process that’s deceptive and dishonest by design.

A Michigan Supreme Court nominee needs two things to be nominated at a late summer party convention: A reputation as a member of said party who can be relied upon to share the worldview of the interest groups who pay the bills.

And an Irish surname.

If the nominee had been previously appointed by the governor to fill an opening on the court, the Irish surname requirement is waived. Because that candidate will have an even more valuable ballot advantage — the designation “Justice of the Supreme Court.”

Upon nomination by a convention hall of party activists, the candidate immediately swaps party affiliation for a nonpartisan stamp that imparts the qualities of objectivity and impartiality voters are looking for. Because who wants to give a partisan judge the last word?

The problem is, that leaves voters even less informed about who they’re electing to the bench. If Supreme Court justices are going to be nominated by political parties, they should carry that party designation with them to the ballot. If they know nothing else about the candidates, those who vote along partisan lines would at least have that marker to follow. Now, voters only can assume the justices will wear black robes on the bench when those funding the campaigns assume they’ll be wearing blue or red.

Outside of whatever press coverage there is of the campaigns, about the only marker currently available is the concluding fine print that discloses which political party paid for the 30-second ads that tout or assail what are the packaged trios of candidates this year.

Millions required for court seat

In 2010, party expenditures of  $5.5 million constituted 60 percent of the $9.1 million spent overall and was more than double that spent by the candidates themselves. Over the past decade, when “control” of the court became one of the top pursuits of the parties and their interest group allies, the sources of half of all the money spent on court campaigns hasn’t been disclosed because they were spent on so-called unregulated issue advertising.

The money that is disclosed isn’t any more seemly if you think judges should refrain from accepting political action committee checks from business groups, labor unions and trial lawyers. Of the more than $2.4 million in contributions reported through the end of September by Republicans Stephen Markman, Brian Zahra and Colleen O’Brien and Democrats Bridget Mary McCormack, Connie Marie Kelley and Shelia Johnson, about 15 percent came from PACs.

Though on the surface that’s an improvement over the shameless fundraising culture of the Legislature, it’s a fair bet that if the secret money spent by the parties was ever disclosed, the Supreme Court would be revealed to be no different from the House or Senate in how campaigns for the respective offices are funded. When there’s a majority vote to be cast in either the court or the Legislature, interest groups believe they can control the outcome through securing Election Day victory by candidates who won with the aid of their money.

Justice Marilyn Kelly can’t run again for another eight-year term because of constitutional age restrictions, but, in addition to her opinions, she leaves behind a template for how the court might rebuild its integrity. Along with James Ryan, a senior judge on the 6th U.S. Circuit Court of Appeals, Kelly co-chaired the Michigan Judicial Selection Task Force that issued recommendations in June:

“The Task Force strongly believes that the justices are not like other office-holders, for whom partisan alignment is a valid signal of their policy preferences. Supreme Court justices must apply the law even-handedly, without regard for wealth, power, or whether a particular political party will gain advantage.  Not only must justices act even-handedly, the public must perceive this impartiality for the court to retain its legitimacy.  The close link between candidates for the Supreme Court and the political parties that Michigan’s current process signals may suggest to the voters that justices decide cases merely to carry out the political platforms of their respective parties.  Michigan most certainly deserves better.”

The quickest fix, the panel said, would be a change in state law that would nominate Supreme Court justices not at party conventions but in nonpartisan August primaries, along with the other judges in Michigan’s “One Court of Justice.” A constitutional change that models other states would have justices nominated for gubernatorial appointment following recommendation from a bipartisan commission. In those states, appointees then must stand for a retention election. Such reforms, however, would still make Supreme Court justices the beneficiaries of special interest cash or targets of partisan retribution.

A better way would establish an appellate bench of 35 judges by merging the Supreme Court with the Court of Appeals. A panel of seven judges from the pool could be selected through a blind draw to serve two-year Supreme Court terms. Voters would still have a say over which judicial candidates are elected, but the impact of money on judicial elections would be diffused. Distance would be created. And such a system would more likely than not sever the relationship between campaign contributions made in the preceding election and who would sit on the high court during the subsequent term.

Kind of the opposite of the situation now, to the detriment of both Michigan’s judiciary and the people it’s supposed to impartially serve.

Peter Luke was a Lansing correspondent for Booth Newspapers for nearly 25 years, writing a weekly column for most of that time with a concentration on budget, tax and economic development policy issues. He is a graduate of Central Michigan University.

8 comments from Bridge readers.Add mine!

  1. Joann Neuroth

    Spot on, Peter. This is the most frustrating part of each year’s ballot. (Well, followed closely by other judges). With nothing to go on other than (hidden) party affiliations, I hate the responsibility of “choosing” this important post! Your “better way” idea sounds like a breath of fresh air to me. Any chance anyone’s listening to it?

  2. Jim

    I would advocate that this model be used for other state boards such as Education.
    For years I amused myself by asking people, on the Wednesday after election day, who they voted for the State Board of Education. Rarely could they remember even one, and even rarer could they justify why they voted for that person, other than party affiliation.
    Similar to what Peter recommends I think a system could be set up where members of local boards of education would elect the state board. In my limited surveying I found local boards of education are more likely to know who the State Board members are and even more importantly what their stances are on educational policies.

  3. larold

    A nice story but the larger issue is people should not be voting for Supreme Court judges. It should be handled here like it is at the federal level. Imagine if people were asked to vote for federal judges! How different is that from what we have now? This and a multitude of other issues — term limits, public employee compensation and retirement benefits, the number of valid signatures it takes to put a constitutional proposal on the general election ballot — could have been managed properly if anyone had shown insight and campaigned for the constitutional convention two years ago. Voting for Supreme Court judges and the unendurable number of ballot proposals before us every election could have been deep sixed if we had rewritten our badly out of state state constitution. But everyone and their brother was afraid to do that. So we continue to be stuck doing things the 20th century way in 2012.

    1. Al

      The federal process is as rife with political overtones as is Michigan’s. Right now there are 120 judges who have been nominated by the President who are waiting for action in the senate. Their nominations have been held up merely because the minority party, either out of political spite or pure political skullduggery, doesn’t want to allow an up or down vote on their appointments. A blind draw would at least eliminate some of the money and political influence that now dominates what is called the democratic process,

  4. Charles Richards

    The proposal to have justices nominated by nonpartisan primaries isn’t of much value. The same groups would still be financing the campaigns of their preferred candidates. Nor is the proposal to have them nominated by a bipartisan commission. Those tend to be dominated by the bar association and reflect the fashionable thinking of the law school professoriate ten years earlier. There have been cases where governors have rejected all the nominees as unacceptable.

    It is true that groups such as environmental groups, unions and corporations support judges whose judicial philosophy they agree with. But that is far from the quid pro quo that Mr. Luke asserts governs our courts. It is simply the case we sharply disagree about judicial philosophy. Witness the U. S. Supreme Court. Those individuals are far removed from the electoral process, but there is considerable questioning of the legitimacy of their decisions.

  5. T.W.Donnelly

    Peter Luke shines important light on the shortcomings of the process for the formation of Michigan’s Supreme Court. Take the issue of Proposal Six. Some have suggested that Mr. Maroun made contributions to the campaigns of some of the justices, and have implied that these dollars might have contributed to the decision to grant Proposal 6 a spot on the ballot.This casts doubt on the impartiality of the Court. A similar case could be made for the placement of Proposal 5 for the same reasons. When one has in excess of a billion dollars, it is easy to throw one’s weight around.And it leaves the rest of us paupers to watch and wonder.
    Another drama unfolded concerning the size of the type used on one of the petitions to get an issue on the ballot. It was one of the thinnest disguises ever attempted to overturn the written consent of 700,000 signatories.Some legal positions look shaky, but that argument against approval really smelled of dead fish.

    The decision of the Supreme Court about the constitutionality of the state income tax on pensioners passed by the law makers despite being expressly forbidden in that same Constitution was a really telling example of how the political winds all but dictate court decisions. Needless to say, many if not all pensioners lost all faith in the legitimacy of court proceedings.Quid pro quo around election campaign contributions, perhaps?

    So, the citizens of Michigan have about the same chance at justice as they have at winning the lottery.

  6. Rich

    “The failures we have are not failures at all. They have been designed into the system”
    The games people play . . . and our having to eat this cooking in the 21st century is of serious question.

  7. Duane

    I few concerns I have with what has been written;

    Before drastic change I would like to know some specific failings of the current system, obvisously Justice Mailyn Kelly is a fine example of a success but what cases have been badly handled, which Justice are so bad that justifies this change?

    There is the complaint of two criteria currently needed for selection, but what criteria would replace them, is like by one group to be replaced by like of another group?

    There is the current issue of transparency, currently there is a lot of talk about letting the public/voters know more and more and yet in this case we are to know less (we will no longer even know their politicial leans) and this new system removes what little we do know so how is it more transparent?

    There is check in system (the next election and term limits, I do reconize the Bridge and Mr. Luke much of the media if not all don’t trust the voters because they so dislike term limits) but I see no where that the propose system has any check, are we to believe this elite group can have no mistakes?

    Remove transpancy, remove system checks, create a small elitists group to replace the choice of the voters, and do to this without any demonstration of failure in the current system raises concerns of the thoughfulness or even the motives of these changes.

    A test of the thoughfulness is the alternative, when the sole reason for the change is because people do truly know enough about the candidates and yet Mr. Luke proposes the Justices be place into the straight ticket voting. As best I can recall the current system requires that voters have to look past the partisan part of the ballot to find the Justice candidates and then make a personal selection. The current system would seem to require more knowledge of the Judicial candidates than Mr. Luke is currently so disdainful of and yet he makes the leap to relying on the voters that need to no more than where the straight ticket voting box is. This ‘plan B’ raises real concerns if Mr. Luke even pays attention to what he writes or even if there is an editor that reads it and thinks about it. I am a lowly voter (in Mr. Luke’s mind, I prefer the current system of his plans A & B) and these are highly skilled professional news and media people, I have had an employer or two and they would never had allowed this type of logic use to represent them.

Leave your comment...

Your email address will not be published.

Invest in non-partisan journalism.

Donate to The Center for Michigan. Find out why.