Traverse City Record-Eagle

March 10, 2013

Jack Lessenberry: Court pick process panned


— Gov. Rick Snyder made two major decisions last week, one of which got a vast amount of attention and another which drew little notice — but should have gotten more.

The one that got all the headlines, of course, was his announcement March 1 that Detroit was in a state of financial emergency, and that he soon would appoint an emergency manager.

The decision that didn’t get much attention was his appointment of Macomb County Circuit Judge David Viviano to the Michigan Supreme Court. He replaces Diane Hathaway, who resigned in January and is awaiting sentencing for real estate fraud.

What was controversial about this — or should have been — was the process, not necessarily the new justice. There has been widespread concern about Michigan’s highest court, largely for the blatantly partisan nature of the way justices are chosen — and sometimes rule once on the bench. Last year, a distinguished bipartisan Michigan Judicial Selection Task Force issued a highly praised report on ways to improve the court.

The panel, whose honorary chair was the governor’s fellow Republican, former Supreme Court Justice Sandra Day O’Connor, unanimously agreed on a method for replacing justices who resign.

The governor, however, ignored their recommendations.

More on that shortly. But first — to anyone who has been following events, announcing an Emergency Financial Manager for Detroit this was about as surprising as snow in early March. The city hasn’t been able to balance its budget since 2004, and has covered shortfalls by borrowing. Detroit has long-term liabilities of $14 billion.

Nearly $2 billion of that will come due in the next five years, and there is no realistic plan to pay any of it back. Detroit has hit the wall.

Frankly, the governor had no choice — and nobody rational could say he was in a rush to take over the city. Had that been the case, he could have sent in an emergency manager last spring.

The city was within days of running out of cash last April. But instead of lowering the boom, state officials worked out an unwieldy “consent agreement” under which the city could continue to govern itself with state assistance and input.

Michigan officials even made it possible for Detroit to borrow another $137 million last April to get the city through while it began to make painful reforms. But few of the reforms were ever made.

Throughout the process, the governor seemed completely open, patient and transparent. By the time he declared a state of emergency last week, it seemed clear there was no longer any choice — except to those pandering for votes or living in a fantasy land.

Yet that’s not what happened with the high court vacancy. I have written frequently about the Michigan Supreme Court, and, to my mild surprise, the governor offered to talk to me the day he appointed the new justice. He said that he hadn‘t just made an arbitrary pick. “We had a pretty open process,” he told me.

“Anyone could apply for a position,” or be recommended by others, he added said. Once they did, he said his legal team checked them out, and Viviano’s record was then reviewed by the State Bar’s Judicial Qualifications Committee.

The governor wouldn’t say if other potential nominations had gotten that far. But he did say that his biggest concern was integrity, not ideology, and that social issues were never discussed.

Viviano has, however, made his stoutly anti-abortion, anti-same-sex marriage and pro-death penalty beliefs known.

To Snyder’s credit, that’s more of a vetting process than many other governors have used for appointments to the high court. But it is not what the judicial selection task force recommended.

The panel, which was led by now-retired Michigan Supreme Court Justice Marilyn Kelly, a Democrat, and James Ryan, a Republican who is now a senior U.S. Court of Appeals judge, suggested a committee screen applicants and hold public hearings.

After that, they would present the governor with a list of three to five names from which he could then pick. When I asked about this, Snyder was dismissive. “Well, they have their ideas, there are other ideas,” he said. The governor did say he eventually would have more to say about court reform, and said campaigns had gotten too partisan. But he wasn’t willing to endorse any of the task force’s carefully crafted recommendations, even the one calling for full disclosure of who is giving money to influence supreme court races.

Which is, frankly, a scandal. Five years ago, a University of Chicago law school study ranked Michigan’s Supreme Court dead last among the states, primarily because it is so partisan.

Little or nothing has improved since.

Last fall, one anonymous commercial suggested that high court candidate Bridget McCormack supported terrorists. She won, but five years ago, another ad alleging that Chief Justice Cliff Taylor slept on the bench may have helped defeat him.

The woman who won instead is now a convicted felon. Clearly, the reputation of Michigan’s highest court badly needs repair. Sadly, an impressive blueprint to remedy that has so far been ignored.

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.