Columns

Jack Lessenberry

It’s Not “Who” but “How” for the Supreme Court

January 11, 2013

DETROIT — The only thing surprising about scandal-plagued Democratic Justice Diane Hathaway’s decision to “retire” from the Michigan Supreme Court halfway through her term was that it took so long. The question is, however, this: In naming her replacement, will Governor Rick Snyder seize this opportunity to act on the recommendations of a blue-ribbon, bipartisan court reform panel…or will he once again act as if the court was designed to be a dumping ground for political hacks?

The Hathaway mess has brought new disgrace to a court which a 2008 University of Chicago study found to be the most politicized and least respected state Supreme Court in the nation. Her days have been numbered since last spring when a Detroit TV station aired a sensational story about “irregularities” in the sale of a home she and her attorney husband owned in Grosse Pointe Park a little more than a year ago. As time went on, the more details uncovered about the deal, the worse it looked. Eventually, a civil suit was filed in U.S. District Court.

Then, on Monday, the state Judicial Tenure Commission filed a sensational 19-page complaint against her charging that she had broken federal tax and money laundering laws, state tax laws and had also violated more than a dozen laws, standards of conduct, ethics and judicial canons. Essentially, what Hathaway and her husband Stephen Kingsley were accused of temporarily transferring to relatives other properties they owned—including their home in Florida—in order to get a bank to qualify them for a “short sale.” That allowed them to write off $600,000 of mortgage debt on the Grosse Pointe Park home they sold. The complaint alleges that the houses were subsequently deeded back to the Hathaways.

What will happen to the Justice after she leaves the court January 21st is not known, though the federal government has attempted to seize her Florida home. Republicans are calling loudly for her to forfeit her pension, which she qualifies for based on both her four years on the state Supreme Court and her time on Wayne County’s Circuit Court. What is clear is that the Governor now gets to name a replacement, and this will almost certainly turn the Court’s four to three GOP majority into a heavier five to two advantage.

Legally, Governors can pick whomever they like in a situation like this, and the process has normally been intensely political. But there is now a bipartisan blueprint for a better way. Last April, the Michigan Judicial Selection Task Force released its final report, which includes recommendations on how to improve the process in an instance exactly like this. The task force had about as impressive a pedigree as could be imagined. The honorary chair was retired U.S. Supreme Court Justice Sandra Day O’Connor, a Republican, and the first woman ever to serve on our nation’s highest court. The two working chairs were U.S. Court of Appeals Judge James Ryan (another Republican) and former Michigan Supreme Court Chief Justice Marilyn Kelly (a Democrat).

The task force, which studied the court system for more than a year, was actually the brainchild of Justice Kelly. In a 2011 interview, she told this columnist that she had been deeply concerned over the Michigan Supreme Court’s integrity, its public image and wanted to do something to improve both. The task force’s final report recommends that the Governor name an advisory screening commission of lawyers and non-lawyers, which would accept applications from those seeking appointment to the high court, and conduct open public hearings on the applicants’ merits. Eventually, they would recommend a list of three to five of the best qualified candidates to the Governor, who would then agree to pick one.

“This process would leave the Governor’s ultimate authority to appoint Justices intact. But the Justices the Governor appoints by this method would no longer need to worry about the public perception of their qualifications,” the report added. Concluding, “The task force respectfully asks Governor Snyder to adopt this practice in his current administration.”

“This is a wonderful opportunity and it would be a wonderful idea if the Governor were to seize the moment,” just-retired Justice Kelly said when she was reached at home Tuesday morning. During the task force’s deliberations, she said, they met with the Governor who acted interested in their suggestions but was, “politely noncommittal.” The state’s largest newspaper has urged him to adopt the task force’s suggestion for the vacancy. But repeated calls and e-mails to the Governor’s office about the issue produced no comment the day after it was confirmed that Diane Hathaway would leave the state Supreme Court.

Instead, speculation revolved around the possibility that he would simply appoint Oakland County Circuit Judge Colleen O’Brien to the vacancy. However, as a candidate for the Michigan Supreme Court in last November’s general election she was soundly rejected by the voters. She finished behind the two winning candidates—one from each Party—including a second Democrat who also lost. In fact, she received nearly a million fewer votes in the state than GOP Presidential nominee Mitt Romney did, and he lost badly as well.

Appointing Colleen O’Brien might seem to be defying the will of the people. Trying the method suggested by a task force led by former U.S. Supreme Court Justice Sandra Day O’Connor might seem to be not only precedent-setting good government, but also good common sense.

Veteran journalist and national Emmy Award winner Jack Lessenberry teaches at Wayne State University, serves as Michigan Radio’s senior political analyst and writes regularly for several publications. He also serves as The Toledo Blade’s writing coach and ombudsman and is host of the weekly television show Deadline Now on WGTE-TV in Toledo.