Court elections put big money in charge

When I think about the Michigan Supreme Court, I have to sadly conclude it represents the very best justice that partisan money can buy. 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. 6th Circuit 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.

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.

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 inMichigan.

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.”

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 “nonpartisan” (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.”

Conclusion: After extensive deliberations, the Task Force reached two unanimous recommendations: Judicial candidates should get on the ballot via “open, non-partisan primaries,”; and 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 and 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 of 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.

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.

Editor’s note: Former newspaper publisher and University of Michigan Regent Phil Power is a longtime observer of Michigan politics and economics. He is also the founder and chairman of the Center for Michigan, a nonprofit, bipartisan centrist think–and–do tank, designed to cure Michigan’s dysfunctional political culture; the Center also publishes Bridge Magazine. The opinions expressed here are Power’s own and do not represent the official views of the Center. He welcomes your comments via email.

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Tue, 06/26/2012 - 9:08am
"And even cynics like me might hope that our leaders might, at some point, be willing to do something to benefit our entire state." Don'i hold your breath. My own opinion is that the expressed concerns are legitimate and severely and adversely influence many decisions and decision litigants. But also, the news business is not what it once was - for a variety of reasons O'm sure - and there does not seem to be any way to publicly inspire change. In short, deoressing.
Tue, 06/26/2012 - 3:31pm
Mr. Power denigrates our Justices claiming they are bought and paid for by the two parties and yet he holds the work of two Repiblican judges as showing us the way out of the is situation. Are all judges nomiinated by the parties and selected by the public unable to carry out their roles and responsbilities to the best of the knowledge ans skills or are there those who can and do hold their responsibilties above partisan ship and the means they were placed in those roles? Mr Power may want it both ways, but when the reality doesn't fit his poiint of view he simply ignores it. He would rather condemn all who serve or have served then acknowledge that individuals selected through this system have been and are ethical and honorable people. The media wonders why the public distrusts them individually and as a group, convenience and ends always trump truth and accuracy. I believe that the selection system is ripe for changes, but to condemn all who service to justify those changes is an abuse of platform Mr. Power has and it discredits all that he wants to happen. Mr. Power has lowered my confidence so much so that I would rather stay with what we have then to allow it to be worked on by the people that Mr. Power would trust to make the changes. I trust that there are hoonorable Democrats and Republican, there are honorable Justice who have gone through scrutiny by the parties that are ethical and honorable. I have no reason to believe that anything Mr. Power can contrive to replace the current system will produce Justices that any more trustworthy or more capable or more reflective of the Michigan public's view of the practical issues that face our State. Mr. Power is quick to condemn and belittle but never takes the time to give open and unprejudicial analysis of what he is against. I personally wold rather have someone beit a party that is accountable for how the Justices rule and some petition group that is getting funding for a particual candidate drive and then disappears when the name goes on the ballot.
John Nash
Wed, 06/27/2012 - 7:44am
Phil, Another great example of how you are truly for Michigan and what is best for Michigan. I fully agree the last election involving judges was totally political and the amount of money spend of TV commercials for judges was obviously paid by special interest groups. I hope your article lands on some open ears. By the way, I would really like to hear your opinions in a future article about the fact that every State college funded by Michigan has it's own board, instead of having one state board of education to run all the State colleges like many of our neighboring states. The idea that every State college seems to think they have to have a medical school, a law school, an engineering school and whatever else is duplication that costs the tax payers millions. It is also ridiculous to assume any voter can be well enough informed to vote on all these various boards. Keep up the good work. hanks