Michigan’s ‘supreme’ election is a scandal

Markman, O’Brien, Zahra, McCormack, Johnson and Kelley could be a law firm for all voters know about them, instead of the six party-nominated candidates for the Michigan Supreme Court on the non-partisan section of the Nov. 6 ballot.

As a result, too few voters understand, or likely care about, the blatant contradiction in that sentence: That the candidates seeking to fill three seats on the seven-member court this fall are partisan enough to be selected at Democratic and Republican party conventions, but are being presented to voters as having no party affiliation.

From the selection to the candidates, to the manner in which they appear on the ballot, to the financial means by which their campaigns are waged, a Michigan Supreme Court charged with finding the truth in dispensing justice is re-assembled every two years through an electoral process that’s deceptive and dishonest by design.

A Michigan Supreme Court nominee needs two things to be nominated at a late summer party convention: A reputation as a member of said party who can be relied upon to share the worldview of the interest groups who pay the bills.

And an Irish surname.

If the nominee had been previously appointed by the governor to fill an opening on the court, the Irish surname requirement is waived. Because that candidate will have an even more valuable ballot advantage -- the designation “Justice of the Supreme Court.”

Upon nomination by a convention hall of party activists, the candidate immediately swaps party affiliation for a nonpartisan stamp that imparts the qualities of objectivity and impartiality voters are looking for. Because who wants to give a partisan judge the last word?

The problem is, that leaves voters even less informed about who they’re electing to the bench. If Supreme Court justices are going to be nominated by political parties, they should carry that party designation with them to the ballot. If they know nothing else about the candidates, those who vote along partisan lines would at least have that marker to follow. Now, voters only can assume the justices will wear black robes on the bench when those funding the campaigns assume they'll be wearing blue or red.

Outside of whatever press coverage there is of the campaigns, about the only marker currently available is the concluding fine print that discloses which political party paid for the 30-second ads that tout or assail what are the packaged trios of candidates this year.

Millions required for court seat

In 2010, party expenditures of  $5.5 million constituted 60 percent of the $9.1 million spent overall and was more than double that spent by the candidates themselves. Over the past decade, when “control” of the court became one of the top pursuits of the parties and their interest group allies, the sources of half of all the money spent on court campaigns hasn’t been disclosed because they were spent on so-called unregulated issue advertising.

The money that is disclosed isn’t any more seemly if you think judges should refrain from accepting political action committee checks from business groups, labor unions and trial lawyers. Of the more than $2.4 million in contributions reported through the end of September by Republicans Stephen Markman, Brian Zahra and Colleen O’Brien and Democrats Bridget Mary McCormack, Connie Marie Kelley and Shelia Johnson, about 15 percent came from PACs.

Though on the surface that’s an improvement over the shameless fundraising culture of the Legislature, it’s a fair bet that if the secret money spent by the parties was ever disclosed, the Supreme Court would be revealed to be no different from the House or Senate in how campaigns for the respective offices are funded. When there’s a majority vote to be cast in either the court or the Legislature, interest groups believe they can control the outcome through securing Election Day victory by candidates who won with the aid of their money.

Justice Marilyn Kelly can’t run again for another eight-year term because of constitutional age restrictions, but, in addition to her opinions, she leaves behind a template for how the court might rebuild its integrity. Along with James Ryan, a senior judge on the 6th U.S. Circuit Court of Appeals, Kelly co-chaired the Michigan Judicial Selection Task Force that issued recommendations in June:

“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. Supreme Court justices must apply the law even-handedly, without regard for wealth, power, or whether a particular political party will gain advantage.  Not only must justices act even-handedly, the public must perceive this impartiality for the court to retain its legitimacy.  The close link between candidates for the Supreme Court and the political parties that Michigan’s current process signals may suggest to the voters that justices decide cases merely to carry out the political platforms of their respective parties.  Michigan most certainly deserves better.”

The quickest fix, the panel said, would be a change in state law that would nominate Supreme Court justices not at party conventions but in nonpartisan August primaries, along with the other judges in Michigan's "One Court of Justice." A constitutional change that models other states would have justices nominated for gubernatorial appointment following recommendation from a bipartisan commission. In those states, appointees then must stand for a retention election. Such reforms, however, would still make Supreme Court justices the beneficiaries of special interest cash or targets of partisan retribution.

A better way would establish an appellate bench of 35 judges by merging the Supreme Court with the Court of Appeals. A panel of seven judges from the pool could be selected through a blind draw to serve two-year Supreme Court terms. Voters would still have a say over which judicial candidates are elected, but the impact of money on judicial elections would be diffused. Distance would be created. And such a system would more likely than not sever the relationship between campaign contributions made in the preceding election and who would sit on the high court during the subsequent term.

Kind of the opposite of the situation now, to the detriment of both Michigan's judiciary and the people it's supposed to impartially serve.

Peter Luke was a Lansing correspondent for Booth Newspapers for nearly 25 years, writing a weekly column for most of that time with a concentration on budget, tax and economic development policy issues. He is a graduate of Central Michigan University.