On Judicial Selection
June 1, 2012
A month ago, the Judicial Selection Task Force convened by Justice Marilyn Kelly and Senior Judge James L. Ryan released its report and recommendations for ways to improve Michigan’s methods for selecting justices of the Michigan Supreme Court. I had the privilege as a nonvoting project assistant to see 24 distinguished Michiganders – conservatives and liberals, lawyers and non-lawyers – practice politics as it’s portrayed in civics text books. They made compromises and found consensus on a handful of policy changes that should be adopted for the sake of impartial justice.
There was agreement among task force members that all spending in Supreme Court election campaigns should be completely transparent as to its sources. This recommendation is not satisfied by a disclaimer on an advertisement that says the ad was paid for by a political party. It is satisfied only when the political parties and other interest groups report to the Bureau of Elections all they have spent and who gave them the money to spend. It is not satisfied by saying the money came from the treasury of a nonprofit corporation. It is satisfied only when the names of human beings, registered political committees or profit-making corporations are identified as the ultimate contributors.
The only serious local voice I’ve heard raised against this recommendation is that of former Justice Clifford Taylor. Twice I’ve heard Justice Taylor say that disclosure is a mechanism for intimidation. This is a recommendation that is unambiguously constitutionally permissible. Part IV of Citizens United v Federal Election Commission made that fact as clear as could be, with only Justice Clarence Thomas -citing fear of intimidation- in dissent. In this case, one justice’s intimidation was eight justices’ accountability.
The eight justices of the U.S. Supreme Court believe that voters should have the right to know whose money is paying for campaign messages in all elections so voters can make choices informed by knowledge of who is supporting the candidates. But the stakes are even higher in a state Supreme Court race than they are for a legislative or executive race. This is because all parties have a due process right to an impartial court hearing that is not biased in reality or appearance by overwhelming campaign spending by a litigant or counsel in their case. Campaign supporters must be known for presumed bias to be detected.
The task force made a second major recommendation that Michigan’s political party nominations of candidates who run in November as nonpartisans should be replaced by an open nonpartisan primary election. The status quo, derided by at least one veteran judicial campaigner as the Immaculate Reconception, makes a mockery of the nonpartisan label on the general election ballot. It may be efficacious for the parties but it is fundamentally dishonest.
Critics argue convincingly that an open primary will not keep the parties out of the process. The task force recognized this. But the task force recognized that a binary choice between candidates chosen by party leaders and funders doesn’t satisfy the constitutional mandate for a nonpartisan election. Certainly the parties’ funders’ picks would win their share of the primaries, but sometimes they wouldn’t.
On this point, Clifford Taylor defends the status quo. He says that the citizens’ will must be trusted – but only with the binary choice served up by the parties. He worries that voters would choose celebrities or former sports stars in a primary election. Trust the voters – just not too much.
The task force recommends the appointment of a nominating commission for the purpose of screening candidates and making recommendations to the governor for appointments to complete terms vacated by resignation or death. This recommendation is born of a simple fact: Since the Michigan Constitution of 1963 went into effect, just 14 of 26 justices first reached the Supreme Court by election. The other 12 were appointed with no checks or balances. This makes the judicial branch perilously dependent on the unfettered prerogative of the governor.
There are numerous models for nominating commissions, but the ones most attractive to the task force were those with bipartisan composition, where non-lawyers outnumber lawyers, and all the commission’s business is conducted in public. Elections would still have consequences because any governor surely would appoint a majority of commissioners from his own party. However, a publicly conducted nominating process would dispel doubt about the merit of appointees.
Two task force recommendations were developed in response to the abysmal rate of voter participation in Supreme Court elections. Roughly 25 percent of those who vote for the top of the ticket in any election fail to cast a vote for a Supreme Court candidate. Members of the task force believe that more and better quality information about candidates could improve voter participation rates.
The task force believes the Bureau of Elections should create a voter information guide on Supreme Court candidates and make it easily accessible to the public. Even if distribution is only online, there should be a source of impartial factual information. It would be worth the small investment.
The task force also recommends the creation of a nongovernmental campaign oversight committee. This body could combine the increasingly popular campaign fact-checking function with the heft of legal analysis that could provide a legal context for specious campaign claims. Or it could provide notice when the canons of judicial conduct are violated in a campaign.
Finally, the task force recommends that the constitutional age 70 limitation for beginning a new judicial term be abolished. That provision is arbitrary age discrimination at a time when our population is aging rapidly.
We all understand that there won’t be quick action on the task force’s recommendations. Government reform is not for the short-winded. But here is a challenge for you: After you’ve seen the umpteenth iteration of an undisclosed TV ad knee-capping a Supreme Court candidate next November, reread this column. The Judicial Selection Task Force got it right.