Traverse City Record-Eagle

Op-Ed Columns

June 28, 2012

Phil Power: Michigan's partisan justice

When I think about the Michigan Supreme Court, I have to sadly conclude that it represents the very best justice that partisan money can buy. And that's a scandal and a disgrace.

Four years ago, the University of Chicago Law School ranked all the nation's supreme courts. It rated Michigan's dead last, based partly on its lack of independence from outside influences.

This pained Justice Marilyn Kelly, who will leave the court next January after serving two eight-year terms, including a stint as Chief Justice. She persuaded Senior Judge James Ryan of the U.S. Court of Appeals to join her as co-chair of a Michigan Judicial Selection Task Force.

They were joined by more than 20 other distinguished Michiganders, both Republicans and Democrats, to consider what ails our present system and recommend changes.

Their report is now out — and it makes for pretty scary reading.

n Example: The 2010 campaign for our supreme court was the most expensive and the most secretive in the nation. The candidates spent a little more than $2.3 million, a sum dwarfed by political parties ($5.5 million) and interest groups ($1.3 million). Over the past decade, more than half of all spending on Michigan Supreme Court races went unreported, with the sources undisclosed — something perfectly legal under current Michigan law.

That's not what the people want. The Task Force reports survey data that 96 percent of Michigan voters favor required public disclosure of all sources of spending for judicial elections.

n Example: The U. S. Supreme Court has ruled that campaign contributions on a judge's behalf can be so big as to require a judge to not take part (the legal term is "recuse") in cases involving a contributor. But that's not what has been happening in Michigan.

The Task Force found that in the 1990s, a whopping 86 percent of Michigan Supreme Court cases involved contributors to justices' campaigns, and there's no reason to think that's changed. The report concludes, "Michigan voters already believe campaign spending has infected the decision-making of their judiciary."

n Example: Candidates for Michigan's supreme court usually get on the ballot by being nominated at a political party's convention. This forces them to kowtow to party insiders and ideologies. After nomination, candidates appear on the "non-partisan" (wink, wink) ballot. 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."

n Conclusion: After extensive deliberations, the Task Force reached two unanimous recommendations: 1) Judicial candidates should get on the ballot via "open, non-partisan primaries," and 2) All contributions to judicial campaigns should be publicly reported.

Fine, so far as it goes.

But it's not far enough. In addition to Michigan Supreme Court justices, there are another class of offices filled by statewide ballot: members of the governing boards of the University of Michigan, Michigan State and Wayne State universities, and members of the state Board of Education. Candidates for these positions are nominated at party conventions and run on the partisan ballot. But their candidacies are subject to the same party insider and ideological litmus tests as judicial candidates.

Moreover, these candidates' qualifications and positions are almost completely unknown to voters, which accounts for the steep (as much as 50 percent) fall-off in voting for these offices.

I know something about this, having been nominated and run for the U-M Board of Regents. Aside from teaching a valuable lesson in humility, the process convinced me our system of electing both judges and leaders of our education system is dangerously silly in that it deters able people from entering public service.

When I was a regent, part of my job was to encourage able people to run for nomination; I had a tough time, as most had no interest in being picked over at conventions by party insiders and assorted ideologues. Worse, the election's outcome is entirely a crap shoot. If Republicans win at the top of the ticket, that normally carries their board nominees to victory — and vice versa.

Far better, I believe, to set up a system of gubernatorial appointments for these offices, coupled with a screening commission to report on qualifications and approval by the Legislature. That step (favored for judicial candidates by some members of the Task Force) would require amending the Michigan Constitution.

But are any of these reforms really likely? When I talked with Justice Kelly last week, she said that the report has drawn some attention in the Legislature and with the governor. So far, no one has stood up and urged adoption, but there's been no open opposition, either.

"The media have dismissed the recommendation out of hand," she says, which suggests the degree of cynicism when it comes to even the most needed "good government" reforms.

But Justice Kelly's Task Force has at least got the conversation started. And even cynics like me might hope that our leaders might, at some point, be willing to do something to benefit our entire state.

Phil Power is a former newspaper publisher and University of Michigan Regent. He is founder and president of The Center for Michigan, a centrist think-and-do tank. The opinions expressed here are his own. By email at: ppower@thecenterformichigan. net.

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