It’s rare for a governor to have the power in his own hands to remedy a problem that’s been embarrassing his state since the present state constitution was adopted, half a century ago.
But with Justice Diane Hathaway’s retirement next week from the Michigan Supreme Court, Gov. Rick Snyder has an easy chance to lock in an important legacy of political reform.
The Michigan Constitution gives a sitting governor the sole power to appoint vacancies on the court. Past governors routinely have exploited the opportunity to make essentially partisan appointments to Michigan’s highest court.
Indeed, Gov. Snyder could easily increase the Republican-nominated majority on the court to 5-2 by making a purely partisan appointment this time around. But he could also do something far more important by choosing his nominee from a short list of candidates vetted by a panel of legal experts and private citizens.
That’s the method recently recommended by a respected bipartisan commission, the Michigan Judicial Selection Task Force. Co-chaired by former Supreme Court Justice Marilyn Kelly (a Democrat) and U.S. Court of Appeals Judge James Ryan (a Republican) the commission’s proposal would insulate the court from the corrupting influence of the political parties and the special interests that finance them by setting up a nonpartisan group to put forward a panel of three to five highly qualified candidates from which a governor would make a Supreme Court appointment.
Michigan is the only state in the nation that picks Supreme Court Justices the way we do: Political party conventions select nominees, who then appear on the statewide ballot as “nonpartisan” candidates. (Incumbents get designated as “Justice of the Michigan Supreme Court,” one reason why most are re-elected.)
Disgracefully, our system is wide open for special interest abuse and all sorts of political shenanigans.
Disguising court candidates selected by party conventions as “nonpartisan” is a fraud on its face. Moreover, it contributes to what Rich Robinson of the Michigan Campaign Finance Network has called a “culture of dark money,” a political system infested by millions of unreported dollars, much of it from unknown contributors.
Robinson recently reported that Supreme Court candidates in last year’s election officially raised and spent $3.4 million. But state political parties and a Washington DC-based nonprofit corporation also spent $11 million more for court-related television ads during the last two months of the campaign. That spending wasn’t reported to the state’s campaign reporting system.
By anyone’s standards, $15 million is big money. Who’s going to fork out that much cash without expecting to get something for it?
That something might be purely ideological: A conservative-learning high court might be pleasing to other conservatives.
Or that something might be more sinister. A sitting Supreme Court judge hearing a case that involves a big contributor – known or, “wink, wink” unknown – is in an untenable situation.
Either her decision looks like it was tilted to favor a campaign donor – an obvious violation of judicial codes of ethics – or the decision angers somebody with a big chit in hand.
Ordinary common sense as well as judicial ethics requires judges placed in such a situation to declare a conflict and recuse -- remove -- themselves from hearing the case. But the Michigan court has, sadly, so far declined to adopt specific rules for this.
The present system of politically-driven Supreme Court appointments is not only silly on its face but it also invites a sinister and secretive money culture that threatens public confidence in the integrity of our judicial system.
Snyder can at one blow fix both problems, with a simple executive order following the unanimous recommendations of the more than 20 members of the Michigan Judicial Selection Task Force. I hope he thinks long and hard before succumbing to the business as usual method of picking judicial candidates.
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.