Michigan’s Republican black-sheep justice is winning some unlikely allies

Update: Michigan Supreme Court up for grabs after 2018 election

EAST LANSING ‒ The crowd gathered next to a pool framed by modernist sculptures and Greek columned gazebos in the backyard of a sumptuous East Lansing home. Michigan Supreme Court Justice Beth Clement stood before them, clutching a wine glass filled with water.

The lobbyists, politicians, academics, lawyers and friends at the campaign fundraiser listened as Clement offered the kind of conservative philosophy that Republicans profess to admire in their justices.

The court should abide by the true separation of powers, Clement told the gathering. Judges should not legislate from the bench. “That applies,” she added, “even when it’s hard.”

Clement, appointed to the bench last year by Republican Gov. Rick Snyder, is discovering this election season just how hard that can be, as she tries to navigate the most unusual of Supreme Court journeys.

“This has not been a traditional election campaign for me,” she said.

Related: Amid jeers, Michigan Republicans select a supreme court justice who strayed
Related: Will Michigan Republicans take down Justice Clement? If so, here’s how.

Those listening at the October fundraiser nodded. They knew her campaign has been tested; for some, it was the reason they were there. The crowd included an unlikely band of moderate Republicans and Democrats — including several founding members of the “Republicans and Independents for (Gretchen) Whitmer” group.

As some core Republicans abandon her campaign, the guests at this event are emblematic of an expanded support base Clement is leaning on as she seeks a new term following two court rulings (in which she sided with her  Democratic colleagues on gun rights and redistricting) that have left her in the state GOP’s doghouse.

The rulings — and the intense political circumstances under which Clement was forced to make them — also illuminate flaws in Michigan’s partisan judicial elections system, where candidates are nominated by political parties but are expected to decide high-profile cases (including some, like the redistricting case, involving their political benefactors) as impartial arbiters of justice.  

New job, new campaign

Before joining the court, Clement was chief legal counsel to Gov. Rick Snyder and worked for Republicans in the state senate, as a self-described “behind-the-scenes” person.

Snyder appointed her last November to complete the term of Joan Larsen, whom President Donald Trump appointed to the 6th U.S. Circuit Court of Appeals. The timing meant Clement had to begin campaigning almost as soon as she arrived.

Meanwhile, a Supreme Court term was underway, during which she joined in decisions with fellow Republican-nominated Justice David Viviano and two Democratic-nominated justices, Bridget McCormack and Richard Bernstein, on most of the court’s major opinions that term.

Two of those rulings fractured Clement’s relations with the party that would formally nominate her late last summer.

The first involved the Ann Arbor and Clio Area school districts, which had banned guns on school property. The bipartisan majority, including Clement, upheld the district gun bans, ruling that the Legislature had explicitly deferred to the judgment of school districts in setting gun policy.

The decision infuriated Republican-leaning gun rights advocates. Of the justices who formed the 4-3 majority, Clement was the only one facing election this year. The other justice up for election, fellow Republican Justice Kurtis Wilder, dissented.

But the ruling that damaged, perhaps beyond repair, Clement’s standing with the party that grudgingly nominated her this summer concerned a ballot proposal to change how the state draws political boundaries. In Michigan that would mean taking away legislative map-making control from Republicans (who have controlled the legislature for the past two redistricting cycles) and putting it in the hands of an independent, presumably less partisan citizen commission.

Opponents of the ballot issue, financed heavily by the Michigan Chamber of Commerce, argued the measure was too broad a change to the state constitution to be decided by voter initiative. Some Republicans called it a legislative power grab by Democrats too weak to win at the polls otherwise.

Again, Clement joined with McCormack, Bernstein and Viviano to keep the measure on the ballot.

The decision was immensely unpopular with Republican activists, and retaliation was swift: Some GOP delegates sought a challenger to Clement’s candidacy and booed her nomination at the party’s August convention, and volunteers on the ground refused to hand out promotional materials with her name on it (the party acquiesced by leaving her off of door hangers bearing the party slate of state candidates).

Suddenly, Clement was being treated within her own party like the unruly uncle that crashes a holiday gathering.

Inside the pressure cooker

Before her ruling in the redistricting case, Clement had tapped into the state conservative grassroots: Lincoln Day dinners and other county party events dotted her campaign calendar amid bar meetings and judicial association gatherings.

She had shared promotional material with Wilder and worked with the Republican consulting firm Sterling Corp., running as a “rule-of-law” judge with experience in all three branches of government.

“I apply the law as written, I apply the constitution as written, I do not legislate from the bench, I do not second-guess policymakers’ decisions,” Clement said.

But when the court picked up the Prop 2 redistricting case in early July, about a month before the Republican convention, it was Clement who came under intense scrutiny.

She said during deliberations she faced “bullying and intimidation” and was threatened with loss of fundraising and political support should she vote to keep the proposal on the ballot. She declined to identify the source of the bullying but noted it did not come from her colleagues on the bench.

“This was definitely unique to this case, not anything that I’ve experienced with all of the other cases I’ve sat on,” Clement told Bridge. “I felt like it was personal. There are seven members on the court, and the focus was on me.”

She said reports of internal deliberations leaked before the opinion was released, implying the public got word of how she might vote and that that was a reason she was specifically targeted.

The attempt at influencing her vote was surprising, Clement said, and others familiar with the Supreme Court deliberation process echoed her sentiment.

“It’s not typical at all,” said Democrat-nominated former Michigan Supreme Court Justice Marilyn Kelly. “I don’t remember in all the years that I served on the Supreme Court ever receiving pressure like that to vote a certain way or as the result of a vote I took.”

Ultimately, Clement decided to follow her interpretation of the law: That the ballot proposal to change how legislative lines are drawn was not too broad to be put before Michigan voters in November.

“If there’s an expectation that I am loyal to political parties or special interest groups,” Clement said she concluded, “then they have the wrong person for the job.”

Payback came quickly.

Sterling Corp. dropped its joint fundraising agreement with Wilder and Clement. Denise DeCook, senior director at Sterling Corp., told Bridge that Wilder’s campaign later approached the firm and entered into its own fundraising and political consulting agreement. She called the change “a business decision,” noting that “sometimes campaigns develop other personalities that were different” than one another. Clement said Sterling alerted her of its decision before the final opinion was released.

Wilder reportedly stopped campaigning with her. He told Bridge in August: “Justice Clement and I are both independent candidates, and like other independent candidates, we will be running independent separate campaigns focusing on victory in November. We will be together on many occasions, but also will focus efforts separately where it makes sense for our campaigns.”

Some party members actively sought to challenge Clement’s nomination at the state GOP convention in August, which failed to materialize when another attorney, Donna Nakagiri, declined to run.

Clement's candidacy was gaveled into approval over the loud jeers of unhappy delegates. Later, her name was left off the Republican door hanging brochures touting the party slate. State GOP spokeswoman Sarah Anderson told Bridge that while Clement was left off the local flyers, she is still in the party’s statewide mailings.

But while support nosedived in some corners, it has risen in others.

In addition to the judges and lawyers who make up the bulk of Supreme Court justice candidate support, some conservatives who disapprove of Proposal 2 told Bridge they have become even more supportive of Clement, saying her decision is an indication her “rule of law” philosophy is truly a guiding principle.

“I would have preferred the decision went the other way,” said Nancy McKeague, Senior Vice President and Chief of Staff of the Michigan Health and Hospital Association and hostess of the October fundraiser. “I have to trust her judgment on that. I don’t have any quarrel with her decision to put it on the ballot.”

Others say Clement's willingness to put principle before politics gave them new faith that the judiciary could give them a fair shake.

The Michigan Education Association, a prominent supporter of state Democrats, endorsed Clement alongside the two Democrat-nominated candidates, Sam Bagenstos and Megan Cavanagh, for the two available seats on the state’s highest court. Meanwhile, Wilder, the other Republican candidate, has been singled out by the Detroit News for “too easily bow(ing) to GOP influence.”

Since her Prop 2 ruling, Clement said fundraising has actually increased — she said her campaign has raised over 60 percent of its money in just the last two months, including the weeks since the last campaign finance filing deadline on September 14.

According to campaign finance filings, her campaign has also raised nearly $65,000 more than Justice Wilder's between the July 31 decision and the most recently-available reports. (Notably, fellow Republican-nominated justice and majority-opinion compatriot, David Viviano, gave her campaign $500 and Wilder's nothing during this election cycle, according to records.)

She took a gamble that appears to be paying off.

“The job that I’m called to do, we might lose friends, we might lose elections, and that’s just part of it,” Clement said of being a justice. “If you’re doing your job right, that potential exists.”

A crocodile in the bathtub

In interviews with a dozen observers of Clement’s campaign, each told Bridge the same thing: That a sitting justice would even need to grapple with the political fallout from a decision is a byproduct of Michigan’s odd way of choosing Supreme Court justices.

Michigan is one of 21 states to elect its Supreme Court justices; many of the others use appointment systems. However, Michigan is the only state in which justices are nominated by state parties but run in the nonpartisan section of the ticket without a party indicator next to their name.

That means that throughout the 2017-2018 Supreme Court term, Clement and Wilder were forced to consider crucial legal questions impacting the Republican Party (such as Prop 2) or major parts of its base (gun rights) while also having to seek support from the very partisans deeply invested in issues before the court.

How to resolve such obvious conflicts of interest has been the stuff of legal scholarship for decades. Then-California Supreme Court Justice Otto Kaus famously said in 1985 that deciding tough cases in the shadow of an election is akin to “finding a crocodile in your bathtub when you go in to shave in the morning: You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”

The Brennan Center for Justice, a nonpartisan law institute, recently released a review of judicial elections systems across the country and recommended that states get rid of them entirely in favor of appointment through an independent nominating commission — a system 14 states already employ.

In addition to relieving justices of the pressure of partisan-oriented elections, the Center estimates its proposal would curb exorbitant spending on judicial campaigns by special interests.

The four candidates for Michigan Supreme Court have already raised $1.3 million for their campaigns as of mid-September, and the Michigan Campaign Finance Network estimates that $1.7 million in untraceable dark money was spent supporting the winning candidates of the Supreme Court race in 2016.

The Brennan Center found Michigan Supreme Court races to be the most expensive in the nation every year from 2010 to 2014. In the 2015 cycle, Michigan dropped to number six in spending.

A bipartisan group of state judicial experts on the Michigan Judicial Selection Task Force scrutinized Michigan’s system in 2012 and made a series of recommendations, none of which have been implemented.

Andy Doctoroff, a lawyer who served on the task force organized by former Justice Kelly and former U.S. 6th Circuit Court Judge James Ryan, said the group was split on whether to recommend a merit selection system similar to the one proposed by the Brennan Center. However, it did recommend that partisan primaries be eliminated in favor of an open primary.

“This (current) process compels would-be candidates for nomination to the supreme court to compete for support from party insiders, who may prefer conformity to party ideology over devotion to the judicial qualities of impartiality, even temper, and intellectual honesty,” the report says.

It’s been six years since the task force made its recommendations. Former Justice Kelly said there just hasn’t been enough public interest to initiate change, which would take a constitutional amendment.

“It doesn’t attract the attention of the electorate,” Kelly said. “Even though people’s lives are greatly affected by how the system works — or doesn’t work.”

But as the high emotion of this summer turns to autumn, Clement is finding the opposite to be true, at least for the time being. The increased attention on her campaign has offered an opportunity to talk about the role of a judiciary that’s truly independent.   

“You don’t usually hear about the Supreme Court, and people are talking about it this year. Which I think is fantastic.”