Columns

Eric Freedman

Disorder in the Courts

October 19, 2012

It’s lucky Michigan has nonpartisan election of judges. Otherwise, things would be really messy this campaign season.

Unlike the legislature, our state courts don’t have two partisan sides of the aisle –wink, wink.

Candidates for trial and Court of Appeals judgeships are nominated without visible party intervention and appear on the nonpartisan portion of the ballot, although many have previously held partisan local and state office. Supreme Court candidates are nominated at party conventions. After the convention – miraculously– Supreme Court nominees shed their GOP and Democratic labels and don camouflage to also show up on the nonpartisan part of the ballot.

At this fall’s GOP convention, Appeals Judge Jane Markey further dispelled the myth of judicial nonpartisanship and neutrality when she gave her views on political issues that could well come before the Supreme Court, where she hoped to serve. The delegates passed her over for the nomination.

But like the Great Pumpkin –I apologize if the comparison spoils the Halloween mystery for Dome Magazine’s youngest readers– partisan stakes, tactics and tawdriness lurk, and not just below the surface. This year’s take-no-prisoners attacks are going beyond the shamelessly distorted paid advertising that’s been blitzing the airwaves and filling voters’ mailboxes on an escalating basis in recent Supreme Court elections.

Republicans kicked things off in the spring with a complaint against Democratic-nominated Supreme Court Justice Diane Hathaway, although her seat is not on the line this November. They accused her of questionable real estate practices. And the Republican-nominated chief justice of the nonpartisan court, Robert Young Jr., stepped into the fray by urging Hathaway to “clear the air.”

The Republicans also filed an ethics complaint against Democratic Supreme Court candidate Bridget McCormack, a University of Michigan law professor, over a promised appearance at a Kent County party fundraiser that she didn’t attend.

The Democrats, in turn, accused GOP-nominated Supreme Court Justice Stephen Markman of an ethical no-no for speaking at an Oakland County Republican event. Markman is up for re-election.

Requests for investigation about sitting judges such as Hathaway and Markman go to the Judicial Tenure Commission. Those about non-judges running for judicial office go to the Attorney Grievance Commission. Both are arms of the Supreme Court.

This campaign season’s partisan sturm und drang isn’t limited to the three available seats on the state’s highest court.

For example, Republicans have accused Democratic Rep. Mark Meadows –a candidate for District Court in East Lansing– of an ethical lapse for attending fundraisers.

All the targeted judges and judicial candidates –regardless of which partisan side of the nonpartisan aisle they tread– have denied any misconduct.

The mutual hyper-finger-pointing reflects several troubling trends beyond the widening partisan divide apparent in America. Gone is the stereotypical –even if inaccurate– image of judicial gravitas.

One factor is the reality that judgeships remain plum jobs –well-enough paid, prestigious and powerful. A second contributing factor is the constitutional authority of the Supreme Court, with its power to strike down statutes and executive orders and to define the scope and limitations of civil liberties and individual rights. And a third factor is the huge amount of money pouring into judicial campaigns.

The Judicial Tenure Commission issues an annual report on its activities, including statistics about requests for investigation and public and confidential disciplinary actions that it took. The report rarely gets media attention and, as Executive Director Paul Fischer put it, “Nobody ever reports on it.”

But inside the most recent annual report are tales of other judges caught engaged in improper political activity. They received confidential letters of admonition, caution or explanation, and the judges, their courts and identifying details of their transgressions were not publicly disclosed.

We do learn, however, that one judge was rebuked for individual and family misbehavior in a re-election campaign, including “verbal confrontations and physical contact with the opponent at various campaign functions and the polls.”

Such acting-up violated the ethics requirements that judges “maintain the dignity appropriate to judicial office” and encourage relatives to adhere “to the same standards of political conduct that apply to the judiciary.”

The commission reproached a second judge for telephoning a judicial candidate’s law partners to pressure the candidate to withdraw from a head-to-head contest against the judge’s colleague and friend. Among other violations, the commission said the prestige of the judge’s office was misused to “advance the personal interests of the colleague.”

And a third was reproached for using court stationary to solicit contributions for a charitable youth organization while campaigning for re-election. That “created the appearance that the organization was being used as a campaign vehicle for free publicity,” the commission said.

Nobody expects Michigan to abandon its tradition of electing judges, and past proposed constitutional amendments to eliminate the party convention role in nominating Supreme Court justices died stillborn. Even so, there should be some way to reduce the partisan politics that give lie to the mantra of nonpartisan courts.

Eric Freedman, a Pulitzer Prize-winning reporter, is associate professor of Journalism and director of Capital News Service at Michigan State University. He and Dome columnist Stephen A. Jones are co-authors of the newly published Presidents and Black America: A Documentary History (Congressional Quarterly Press).