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Phil's column

Phil Power is founder and chairman
of the Center for Michigan.

Supreme Court vacancy gives Snyder chance to combat big money’s influence

It’s rare for a governor to have the power in his own hands to remedy a problem that’s been embarrassing his state since the present state constitution was adopted, half a century ago.

But with Justice Diane Hathaway’s retirement next week from the Michigan Supreme Court, Gov. Rick Snyder has an easy chance to lock in an important legacy of political reform.

The Michigan Constitution gives a sitting governor the sole power to appoint vacancies on the court. Past governors routinely have exploited the opportunity to make essentially partisan appointments to Michigan’s highest court.

Indeed, Gov. Snyder could easily increase the Republican-nominated majority on the court to 5-2 by making a purely partisan appointment this time around. But he could also do something far more important by choosing his nominee from a short list of candidates vetted by a panel of legal experts and private citizens.

That’s the method recently recommended by a respected bipartisan commission, the Michigan Judicial Selection Task Force. Co-chaired by former Supreme Court Justice Marilyn Kelly (a Democrat) and U.S. Court of Appeals Judge James Ryan (a Republican) the commission’s proposal would insulate the court from the corrupting influence of the political parties and the special interests that finance them by setting up a nonpartisan group to put forward a panel of three to five highly qualified candidates from which a governor would make a Supreme Court appointment.

Michigan is the only state in the nation that picks Supreme Court Justices the way we do: Political party conventions select nominees, who then appear on the statewide ballot as “nonpartisan” candidates. (Incumbents get designated as “Justice of the Michigan Supreme Court,” one reason why most are re-elected.)

Disgracefully, our system is wide open for special interest abuse and all sorts of political shenanigans.

Disguising court candidates selected by party conventions as “nonpartisan” is a fraud on its face. Moreover, it contributes to what Rich Robinson of the Michigan Campaign Finance Network has called a “culture of dark money,” a political system infested by millions of unreported dollars, much of it from unknown contributors.

Robinson recently reported that Supreme Court candidates in last year’s election officially raised and spent $3.4 million. But state political parties and a Washington DC-based nonprofit corporation also spent $11 million more for court-related television ads during the last two months of the campaign. That spending wasn’t reported to the state’s campaign reporting system.

By anyone’s standards, $15 million is big money. Who’s going to fork out that much cash without expecting to get something for it?

That something might be purely ideological: A conservative-learning high court might be pleasing to other conservatives.

Or that something might be more sinister. A sitting Supreme Court judge hearing a case that involves a big contributor – known or, “wink, wink” unknown – is in an untenable situation.

Either her decision looks like it was tilted to favor a campaign donor – an obvious violation of judicial codes of ethics – or the decision angers somebody with a big chit in hand.

Ordinary common sense as well as judicial ethics requires judges placed in such a situation to declare a conflict and recuse — remove — themselves from hearing the case. But the Michigan court has, sadly, so far declined to adopt specific rules for this.

The present system of politically-driven Supreme Court appointments is not only silly on its face but it also invites a sinister and secretive money culture that threatens public confidence in the integrity of our judicial system.

Snyder can at one blow fix both problems, with a simple executive order following the unanimous recommendations of the more than 20 members of the Michigan Judicial Selection Task Force. I hope he thinks long and hard before succumbing to the business as usual method of picking judicial candidates.

Editor’s note: Former newspaper publisher and University of Michigan Regent Phil Power is a longtime observer of Michigan politics and economics. He is also the founder and chairman of the Center for Michigan, a nonprofit, bipartisan centrist think–and–do tank, designed to cure Michigan’s dysfunctional political culture; the Center also publishes Bridge Magazine. The opinions expressed here are Power’s own and do not represent the official views of the Center. He welcomes your comments via email.

5 comments from Bridge readers.Add mine!

  1. Mark Higbee

    A superb column, Mr. Power. Thank you for this analysis.

  2. Andrew Paterson

    I will be satisfied if he picks a justice that will be intellectually honest.

  3. Matt

    Bi partisan, Non partisan, Un Biased , what ever you want to call it doesn’t exist! But, you are right the system we have is stupid. Even the idea that we elect the Attorney General, Sec of State Boards of Regents and on and on. We’d be all better off letting the Gov pick his own administration and having the Supreme court along with various boards made up of members with rotating terms picked by the Gov in a manner so that each Govenor per term term has at least one pick unless death or resignation. The idea that Michigan’s voters have the knowledge or even the interest to pick all these offices is absurd.

  4. Duane

    Mr. Power seems to be willing to grab at anything to justify his wants in out judicial system. He is now proposing that his approach of taking the choice of Supreme Court Justices from the voter of our State and putting it in the hands of an elite team of lawyer (selected independent of the voters will) be given the power to chose who will decide on our laws. His justification is that there is too much risk of special interest influence. He implies that a handful of lawyer is not subject to external influence. That some how when a person passes the Michigan Bar exam they become different that the rest of us mere voters/citizens and they are somehow not tempted or influence by the same things us voters are.

    I would offer that Mr. Power in this editorial is trying to influence his readers, even those who might sit on the selection group that he feel is so superior to our current method. And in his efforts to inform us he seems to conveniently omit why the ‘Honorable’ Jusitce (lawyer) Hathaway is ‘retiring’. I suspect prior to evnets of recent months Mr. Power would have felt that Justice Hathaway would have had the credential to sit on the group that would select out Supreme Court Justices, she was a lawyer. She would have been more qualified then the voters to chose. Mr. Power seems to often fail to include inforamtion that may inform readers of things that may not enhance his position on an issue.

    Mr. Power only new arguement for the change in the system is that Michigan is unique in how it does something. He has yet to show corruption in out current system, he is yet to describe how his selection group would be held accountable, he is yet to show how other systems have proven to be unerring in selecting better Justice than Michigan, but he condems out system because it is different.

    Mr. Power wants and wants, but he never discusses, be seems more often than not to even respect others that disagree with him by addressing their reasoning for having a different perspective. He seems to feel that the voters and even the two party system, at least when it comes to judging the laws, cannot be trusted. It is almost as if Mr. Power would rather see the special interests only a have a handful to influence than rather the whole electorate.

    “Or that something might be more sinister. A sitting Supreme Court judge hearing a case that involves a big contributor – known or, “wink, wink” unknown – is in an untenable situation.” Mr. Power sure likes to use inneundo rather real events to promote his wants.

    “Who’s going to fork out that much cash without expecting to get something for it?” Mr. Power again seems quick to condemn and yet offers nothing but suggestion of imporpriety. Let’s see how easy that is to pratice. ‘I have seem people quick to suspect others of navarious motives when there are no facts simply because that is how they would act.’ I am not say that Mr. Power isn’t of the highest of moralists, but you can see how innuendo could so easily be use to question ethics.

    I am again disappointed that Mr. Power wants and wants but never is willing to expain how his wants would actually be ensured to work, to be accountable.

    1. Mike R

      Duane, if you’re going to criticize his commentary, please don’t assume facts not in evidence or cast aspersions on the character or motivation of Mr. Power. There is nothing in any of his previous op-ed pieces, and certainly nothing in this column, to suggest either that he’s deliberately omitting the reason for Hathaway’s departure (which, by the way, only supports his point of view but is not directly germain to the theme of the column) or that he thinks a sitting justice should sit on the selection committee. The whole point of the piece is that our current system creates the APPEARANCE of impropriety, not that any particular elected justice has been found guilty of it. I remind you that it is a fundamental tenet of our legal system that judges are required to avoid the appearance of impropriety. You, apparently, are content to wait until there’s a conviction before changing the system. I think any rational person should and would reject that.

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