Traverse City Record-Eagle

January 9, 2013

Editorial: Hathaway's actions taint judicial system


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---- — Years from now, when Michigan citizens and attorneys complain about the conservative judicial activism of the Michigan Supreme Court, only a few will remember that it was former Justice Diane Hathaway who helped cement the majority.

Hathaway is stepping down from the court in two weeks over what have been called "blatant and brazen" violations of professional conduct concerning the sale of homes in Florida and Detroit, all for a reported $600,000 profit.

In 2008 Hathaway, a Wayne County Circuit Court Judge, with the support of unions including the Michigan Education Association, the AFL-CIO and the United Auto Workers, was nominated by the Michigan Democratic Party to run against Chief Justice Clifford Taylor, a Republican, for an eight-year term. Fueled by a deluge of negative ads, she beat Taylor by 10 points, a major upset.

Taylor had led the court's conservative majority to greatly reduce access by those trying to bring personal injury claims and sue insurance companies and helped overturn decades of legal precedent in environmental law. The court famously overturned the state's groundbreaking environmental protection law passed in the 1970s, one of the first in the nation.

Hathaway's election did not undo the court's conservative majority, which still stands, but made it 4-3, with the possibility that a single election could change the balance.

While a conservative majority is generally no better or worse than a liberal one, this court's record of blatant activism and rejection of years upon years of legal precedent makes it dangerous, just as liberal activism skews justice.

With Hathaway's resignation, Republican Gov. Rick Snyder is certain to name a conservative to replace her, making a 5-2 conservative majority and likely ensuring an activist grip on the court for years to come.

Hathaway's conduct, according to a host of sources and a scathing Judicial Tenure Commission report, were "blatant and brazen violations" of the conduct required from judges, the commission said; it accused her of fraud, money laundering and misconduct in office.

The allegations against a "sitting justice of the Michigan Supreme Court are unprecedented in Michigan judicial disciplinary history. ... Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges," the commission rightly said.

One of the great ironies here is that during that 2008 election Hathaway's negative advertising focused largely on a controversial charge — which Taylor vehemently denied — that Taylor had been caught napping on the bench while arguments were being heard.

Talking about Taylor, Hathaway was quoted as saying "If you see justice in the name, he really belongs in the hall of shame."

Hall of shame indeed.