Traverse City Record-Eagle


January 13, 2013

Good sense needed in picking a new supreme court justice

The only thing surprising about scandal-plagued Democratic Justice Diane Hathaway's decision to "retire" from the Michigan Supreme Court halfway through her term was that it took so long.

The question, however, is this: In naming her replacement, will Gov. Rick Snyder seize this opportunity to act on the recommendations of a blue-ribbon bipartisan court reform panel — or will he once again act as if the court was designed to be a dumping ground for political hacks?

The Hathaway mess has brought new disgrace to a court which a 2008 University of Chicago study found to be the most politicized and least respected state supreme court in the nation.

Her days have been numbered since last spring, when a Detroit TV station aired a sensational story about "irregularities' in a sale of a home she and her attorney husband owned in Grosse Pointe Park a little more than a year ago.

As time went on, the more that was known about this deal, the worse it looked. Eventually, a civil suit was filed in U.S. District Court.

Then, on Monday, the state Judicial Tenure Commission filed a sensational, 19-page complaint against her charging that she had broken federal money laundering and tax laws and federal and state tax laws, and had committed more than a dozen violations of law, ethics, standards of conduct and judicial canons.

Essentially, what Hathaway and her husband, Stephen Kingsley, are supposed to have done was temporarily transfer other properties they owned, including a home in Florida, to relatives in order to get a bank to let them qualify for a "short sale."

That allowed them to write off $600,000 of mortgage debt on the Grosse Pointe Park home they sold. Subsequently, the complaint says the houses were deeded back to the Hathaways.

What will happen to the justice after she leaves the court Jan. 21 is not known, though the federal government has attempted to seize her Florida home, and Republicans are calling loudly for her to forfeit her pension, which she qualifies for based on both her four years on the state supreme court and time on Wayne County's Circuit Court.

What is clear is that the governor now gets to name a replacement, and that this will almost certainly turn the court's 4-3 GOP majority into a heavier 5-2 advantage.

Legally, governors can pick whomever they like in a situation like this, and the process has normally been intensely political.

But there is now a bipartisan blueprint for a better way. Last April, the Michigan Judicial Selection Task Force released its final report, which includes recommendations how to improve the process in an instance exactly like this.

The task force had about as impressive a pedigree as could be imagined. The honorary chair was retired U.S. Supreme Court Justice Sandra Day O'Connor, a Republican and the first woman ever on the nation's highest court. The two working chairs were U.S. Court of Appeals Judge James Ryan, another Republican, and former Michigan Supreme Court Chief Justice Marilyn Kelly, a Democrat. The task force, which studied the court system for more than a year, was actually the brainchild of Justice Kelly.

In a 2011 interview, she told this columnist that she had been deeply concerned over the Michigan Supreme Court's integrity and its public image, and wanted to do something to improve both.

The task force's final report recommends that the governor name an advisory screening commission of lawyers and non-lawyers, which would accept applications from those seeking appointment to the high court, and conduct open public hearings on the applicants' mertis. Eventually, they would recommend a list of three to five of the best qualified to the governor, who would agree to pick one.

"This process would leave the governor's ultimate authority to appoint justices intact. But the justices the governor appoints by this method would no longer need to worry about the public perception of their qualifications," the report added, concluding:

"The task force respectfully asks Governor Snyder to adopt this practice in his current administration."

"This is a wonderful opportunity and it would be a wonderful idea if the governor were to seize the moment," just-retired Justice Kelly said when reached at home Tuesday morning.

During the task force's deliberations, she said, they met with the governor, who acted interested in their suggestions but who was "politely noncommittal." The state's largest newspaper has urged him to adopt that task force's suggestion for the vacancy.

But repeated calls and emails to the governor's office about the issue produced no comment the day after it was confirmed that Diane Hathaway would leave the state supreme court.

Instead, speculation centered around the possibility he would instead just appoint Oakland County Circuit Judge Colleen O'Brien to the vacancy. However, she was a candidate for the Michigan Supreme Court in last November's general election — and was rejected by the voters, finishing behind the two winning candidates, one from each party, and even behind a second Democrat who also lost. She received nearly a million fewer votes in the state than GOP Presidential nominee Mitt Romney did, and he lost badly as well.

Appointing her might seem to be defying the will of the people. Trying the method suggested by a task force led by Sandra Day O'Connor might seem to be not only precedent-setting good government, but also, good sense.

Jack Lessenberry, who teaches journalism at Wayne State University, is Michigan Radio's senior political analyst, ombudsman and writing coach for the Toledo Blade and former foreign correspondent for and executive national editor of The Detroit News. He was named Journalist of the Year in 2002 by the Metropolitan Detroit Chapter of the Society of Professional Journalists.

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