Appoint Judges
November 16, 2009Here I am again trying to deny voters a right: that of electing judges. Such arrogance is more than coincidental to my never having to face voters.
Nearly all Michigan’s roughly 800 judges and justices sit in robes because voters blessed them. (The governor has appointed a handful of judges since the 2008 elections, and these appointees will not face voters until August primaries of 2010. We accord state Supreme Court members the title of justice; we refer to all other members of the judiciary as judges. To save words, I refer to anyone wearing a black robe as a judge, except when specifically referring to state Supreme Court justices.)
I will get to my point that Michigan should not be electing judges, but first I want to lay on the table some praise for them.
The electoral process has produced no more or less mediocrity in intellect or ethics than in states that select judges by other methods. That’s purely subjective. I punched into Google the search term “intellectual and ethical judges.” Google reported: “We did not find results.” Hmm.
In the main, Michigan’s judges are fair-minded and knowledgeable. Rarely have I seen voters evict from a judgeship someone who is extremely competent, fair, and well steeped in the law.
Almost without exception, voters reelect decent judges. Taking their responsibilities seriously, most judges work long hours, poring over attorneys’ briefs and courtroom testimony. Similarly, they innately know or learn how to guide courtroom deliberations and/or how to interact with juries. Finally, judges whom I know truly agonize over wildly varied human and environmental conditions and seek to frame an equitable, best-for-all-concerned verdict.
Democratic adrenaline drives people to assume that their sheer act of voting produces judicial competence. Excuse me as I try to hold back from projectile vomiting. I do not buy the pretense that voters actually know enough to judge judicial candidates.
Aside from a smattering of partisan, special interest, or personal adherents, few honestly can defend Michigan’s politically charged system of picking judges. Running successfully for judgeships are people with good solid names (once in a blue moon has a Cavanagh/Cavanaugh, Kelley/Kelly, Corrigan, Hathaway, or Mc-something lost a judicial race) and often have good track records winning other elections, i.e., have name recognition, fundraising abilities, and solid organizational bases.
Are these political assets judicial assets?
A purely fictitious Ralph Obeczewski runs for an open probate judgeship in Lenawee County. He is 50 years old. He holds a law degree from Wayne State University and master’s in law from Harvard. He did his undergraduate studies at Stanford. At each, he graduated with honors in the top 10 percentile in his class. He has practiced law in three fields: as an assistant prosecutor and assistant federal attorney; as a partner in a law firm specializing in corporate defense; and as an owner of a law firm working on behalf of plaintiffs. He also is the loving father of six children, has adopted six other children, is the sole supporter of his parents and his wife’s parents, and serves on six charitable boards in his town.
Ralph passes every FBI and state police check. He has never contributed a penny to a political candidate, political party, or political action committee. Legal colleagues say that Ralph is the finest legal mind and ethical person they know.
What Michigan’s constitution requires of Ralph is to wage a campaign. Ralph has to beg for $20,000 in money from friends and family. He and supporters hang out on Saturday mornings at local strip malls, collecting signatures to get on a ballot. He makes the ballot and must bob and weave around questions about whether or not he would reverse Roe v. Wade. Ralph makes it through the primary and squares off against Colleen McDonald O’Reilly. Colleen is a four-term county commissioner, vociferously partisan, and practices law only when it does not interfere with her political goals.
Of course, Erin wins.
Nowhere is the overtly partisan and political nature of candidates more on display than in races for the state Supreme Court. They are sordid affairs. Many scorch the earth and are demonizing, demeaning, and disgusting. Aside from forming their own political parties, candidates must grovel before interest groups that largely control political party conventions. Fortunately, at least incumbent justices may place their names on the ballot by simple affidavits; but they rarely do.
As many embrace the way in which state judges and justices get onto the bench, would you place U.S. Supreme Court justices or Court of Appeals, Circuit Court, or federal bankruptcy judges on a ballot? That Judge Judy has better name recognition and favorable approval ratings than any member of the U.S. Supreme Court says much about who would comprise the court.
If it takes $2-3 million to run a race for state Supreme Court, with an equivalent or greater sum gushing forth from your party or special interests, can you imagine the cost of running nationally for a U.S. Supreme Court seat? Perhaps you and your buddies would need to raise and spend $100-200 million.
Like Michigan and other states that elect judges, money is the mother’s milk of enrobing. It is sordid. It debases justice and denies to competent, mature, and objective lawyers a pathway to service. I do not deny the frequent predilection of some presidents and governors to appoint people to the bench who were and are dullards and partisan sycophants. In the main, however, appointees possess shining résumés.
Since the Democratic-controlled U.S. Senate’s rejection of Robert Bork in 1987, presidential appointees all have been nondescript ciphers or ideological purists. I was disgusted by the U.S. Senate’s rejection of Bork, among the most cerebral and intellectually inquisitive people a president has sought to place on the U.S. Supreme Court since Woodrow Wilson nominated Louis Brandeis. Since Bork’s rejection, every nominee has faced sharply partisan and ideological badgering in the Senate.
Call me an elitist, but here is a plan to award critically important judicial posts to the well-deserving. The governor appoints every state judge or justice to a term of 10 years. The governor must select from three highly/exceptionally qualified people recommended by the State Bar Association. The governor selects one, or if the governor rejects all three, the State Bar Association nominates three more candidates, one of whom the governor must pick. The nomination goes to the state Senate, where it takes a two-thirds super-majority to reject.
Upon appointment, the judge or justice must seek voters’ approval at the next general election. The referendum before voters is, “Do you wish to retain Judge/Justice _______ in office or not?” If a plurality votes “yes,” the judge may serve out the 10-year term. If a plurality votes “no,” the judge vacates the office, and the appointment process starts over.
While a sitting judge may be renominated and reappointed for a second 10-year term, voters still must ratify the choice at the next election. After 20 years, a person may not win reappointment to the same bench. A judge who reaches the age of 70 must retire.
Justice demands that we inoculate judges from the insulting and debasing system now in place. We must blend together a nomination process that combines rigorous and objective peer review with gubernatorial, legislative, and voters’ oversight.
Next month: A Fusion Ballot
Craig Ruff is, among many things, a senior policy fellow and former president of Lansing-based Public Sector Consultants.
9 responses so far ↓
1 Jay Simon // Nov 16, 2009 at 7:56 pm
Craig,
I would be comfortable with the Gov (with consent of the Senate) picking the justices of the Supreme Court and even Court of Appeals. Where I would disagree is at the local level.
You have a local judge make some bonehead rulings that run contrary to community standards, there is little that the public can do if local judges were appointed.
The up or down vote on the appointment seems pointless, because it offers no choice. A Governor could simply come back with a crummier pick in the next round and wear out the electorate. Having the electorate be a rubber stamp on local judges does not serve the needs of that community. Without the need to campaign, judges will become complacent.
The 3-5% of judges that do get knocked off are defeated because the challenger offered the people a choice. What choice do the people have in a up or down vote?
There have been gubernatorial appointments that have not been received well in their areas (ex: Bowler in Ionia) because the appointment was seen as political cronyism. Your process does not eliminate the cronyism factor in local judgeships. The local electorate should have the right to have their voice heard.
2 Greg Morris // Nov 20, 2009 at 4:00 pm
As we approach the time to change our state’s constitution, I agree that the judicial selection process in our state needs revamping. One pitfall in changing the electoral process to the appointment (anointed) method is the one currently found in the halls of Congress. We need to keep judicial appointments from becoming a political football for the legislature to leverage the Executive. I believe that Craig’s idea of only limiting the Senate to reject an appointment with no less than a 66% vote handles the problem. They don’t confirm, they only reject, and there should be a reasonable time frame in which the legislature can act.
If the citizens of Michigan decide to allow the Governor to appoint the judiciary, I think the idea of limiting the Governor’s choices to a list of three submitted by the Michigan Bar is far too restrictive. I have the utmost respect for the Michigan Bar’s judicial evaluation committee (or whatever they are now called). Indeed, I participated in their interview process during the Blanchard Administration, and found it extremely valuable when making recommendations to judicial positions to the Governor. I think the Michigan Bar’s role is important, and I can see limiting the gubernatorial choice to persons who receive a qualified or higher rating from the bar. The people elect the Governor, they do not vote for the state bar association.
I would also argue that Craig’s term limit on the appointed judges may be too restrictive. After all, when trying to get the best and brightest attorneys to serve in the judiciary, fewer, not more restrictions are needed. If the judiciary is a calling for an experienced, but young lawyer, why would we cut them out of their career when they reach the mid 50’s? After all, one of the attractive aspects of the federal bench is the appointment for life concept, keeping the judges from worrying that decisions they make will not impact their future livelihoods. Likewise, I tend to think that having elections to reaffirm the appointments on a state and local level also may restrict the number of qualified attorneys willing to take the bench, even if your opponent is “no”.
I applaud Craig for his stance on this “elitist” proposal. I definitely believe there is merit in adopting a gubernatorial judicial appointment system. It is only in the details we disagree
3 Nick // Nov 24, 2009 at 6:37 am
If it it is affront to democracy that a graduate of Harvard, Stanford and Wayne State Univ. didn’t become a judge because of electoral politics, perhaps it’s an affront to democracy that a graduate of Harvard, U-M and MSU didn’t become a state legislator. Perhaps we should just adopt a party list system and have the party leaders select the members of the Legislature.
4 Richard McLellan // Nov 29, 2009 at 4:36 pm
Greg Morris is right in questioning Craig’s idea to give the State Bar Association (actual name: State Bar of Michigan) a special role in nominating judges. The State Bar is an organization with a dominant leadership that reflects the political views of its leaders, albeit bipartisan. Giving Bar leadership a formal role in nominating judges would further politicize the Board of Commissioners. Plus, since membership is required by law, the Supreme Court has limited the State Bar from getting directly involved in political matters.
5 Jim Brazier // Dec 1, 2009 at 12:44 pm
Ruff’s merit selection plan for judges will have the same flaws, although modified, that current merit or “Missouri” plans now have. I favor appointment of judges but trying to avoid cronyism and seeking legitimization through retention elections seem unnecessary. If judges are appointed why not permit the governor to nominate anyone he or she wishes subject to hearing before a joint committee of the house and senate with a vote to either reject or confirm. Of course, Ruff’s idea of a 2/3 vote to reject could still be used.
Reliance upon the state bar for nominee selection may exclude worthy candidates that may include law professors, certainly a source of high-merit talent. A flaw of merit selction plans has been the selection of talent that is not diverse and usually limited to those active in the bar association.
A joint chamber rejection process will most likely ensure that it will be a bipartisan process that a rule of a 2/3 vote may not ensure.
Legitimization through retention elections just seems unnecessary for a process tilted towards bipartisan screening of gubernatorial nominess. It would be better to just limit terms to ten years or require reeappointment after five years by concurrent confirmation votes of the house and senate. Legitimization would come from the democratically elected representatives instead of a democratic election.
Ruff’s plan would have more merit if it did away with judicial elections entirely and it did not require screening of candidates by the state bar association. Greater involvment of the legislators in rejection votes and subsequent confirmation votes would address the “democratic legitimacy” character of the judicial selection process and improve the choice process by a far more informed set of people, the democratically elected legislators of both chambers.
6 Craig Ruff // Dec 2, 2009 at 6:43 pm
Love the conversation.
Jay: Your point about community standards is so well taken that I have changed my opinion. Continue to elect circuit, district, and probate judges. What can we do to better inform voters about local judicial candidates?
Richard: I have never won an intellectual battle with you and am not about to send precious few brain cells left into battle with you on this one. In this chess game, you’ve out-thunk me. It would be dreadful to entice the State Bar into partisan gamesmanship. You and Greg should enter a room to produce a judicial nominating and vetting plan that produces top-notch judicial candidates, that allows a governor to nominate those who subscibe to his or her principles, and that also limits a governor to appoint just any crony or ideologically pure soul to the bench. In a half-hour, you and Greg would produce the right plan.
Greg: Few have your experience in the vetting process. I’m concerned about giving a governor carte blanche. Could we create a recommending group comprised of distinguished peers (people who know what makes a good judge) who may be the State Bar’s pooh-bahs and well-vetted, objective leaders? I have nearly full faith in a governor’s appointment decisions, but still would like an external body to recommend the cream of the crop. Regarding the limit on service, maybe we meet halfway: There’s a fixed, long term but some cap (like age) on service. I don’t think that someone in their 80′s or 90′s captures the nuances of the modern, and I fear many perfectly talented people are denied entry into judgeships because judges stay too long.
Nick: I suspect that you’re taking a Jeffersonian point of view, but dislike such characterizations without having a one-on-one conversation. I strongly stilt toward placing intellectual powers and strong legal reasoning on benches, even at most voters’ expense. I greatly respect the instincts of voters when it comes to filling executive and legislative offices; I’m less than convinced that voters have sharp enough antennae to pick winners and losers among judicial candidates.
Jim: I love your (paraphrased) comment about flaws with modification! Your point appears to be that voters entrust decisions on who should be a judge exclusively to the governor and legislators that they elect on partisan labels. I love the parties. I respect much strong parties wielding strong influence over the setting of public policy. I can’t bring myself, however, to believing that partisanship and/or cronyism should determine who presides over my trial or appeal. We have, at least for now, a highly polarized party system of governance and policy setting. For two decades, that gulf has debauched a highly-desired impartiality by the judiciary. That, I much mourn. If it ever happens, I don’t wish to appear before a hardline and puritanical Democratic or Republican judge at any level. I’ve changed my opinion, because of Jay’s persuasive reasoning, about continuing to elect local judges. But, when you introduce the inherit goodness of partisanship into the selection of all judges, I have to rethink my reasoning. And, while I have no problem with your using a bicameral legislative review system, I abhor the two-chambered legislature (see earlier essays on Dome), and I do not believe that legislators would depart from partisanship to approve or disapprove candidates.
7 Peter Dunlap // Dec 11, 2009 at 1:32 pm
One more oddity in the Michigan system of nominating Supreme Court Justices that your article does not mention. By statute, not by the Michigan Constitution, candidates are nominated by political parties but then run on a “Non Partisan” ballot where party affiliation is unknown. Why are we then surprised when the voters (and lawyers) percieve Sup Ct decisions as based upon party affiliation????? We get what we ask for.
8 Greg Morris // Dec 11, 2009 at 7:59 pm
Craig: You hit the nail on the head. Just put Richard and me in a room (supplied with some scotch) and I have every confidence we could hammer out the perfect judicial selection process. By the way, I agree with your comment that we don’t want 90 year old judges. I think that the current mandatory retirement requirement works just fine.
9 Jim Majkowski // Feb 16, 2010 at 10:15 am
Craig makes some good points, and he’s not the first to have done it. But John Engler’s legacy clearly demonstrates that he was much more interested in installing judges/justices who worked backwards from the desired results (civil plaintiffs and criminal defendants lose) than worked from the law to the result.
And anyone who can find any similarity between Bork and Brandeis knows absolutely nothing about the body of work of either. Robert Bork may have been the most politically active candidate to the high court since Hugo Black. Remember he accepted the job of firing Archibald Cox when no one else would? But his intellect could not compare with the Alabaman’s.
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