Mulling Over Michigan
September 29, 2008
Defending the right of citizens to choose state judges through democratic judicial elections can be a lonely job. You have to counter the arguments of the legal elite, including former U.S. Supreme Court Justices and sitting state Supreme Court justices, not to mention every state bar association in the country. You face stiff opposition from the media elite and a well-funded campaign by groups promoting various “merit” selection schemes. Then you run across the occasional fringe argument claiming that democratic elections, such as we have in Michigan, don’t represent the voice of the people.
Well, we take on all comers here at American Courthouse, so let’s have a crack at this and decide for yourself which system of selecting judges is more accountable to the people.
In Michigan, most judges on the Court of Appeals and the Supreme Court are appointed (when vacancies arise) by the governor. Since the governor is elected by the people, he or she is directly accountable for judicial selections. Under “merit” selection, the governor must pick from a slate of nominees chosen by a judicial selection commission. This commission meets in secret, is typically dominated by legal special interests, and is accountable to no one.
Once appointed, a Michigan judge must run in a contested election against a real opponent, making that judge directly accountable to the people. Sitting Michigan Chief Justice Cliff Taylor, for example, was appointed by my old boss Governor John Engler in 1997. In 1998, Justice Taylor won re-election to fill out the balance of his predecessor’s term. In 2000, Justice Taylor ran again and was elected to a full, eight-year term. Chief Justice Taylor is currently running for re-election against sitting Wayne County Circuit Judge Diane Hathaway. (Full disclosure: my wife, Colleen is Taylor’s campaign manager and I worked in Gov. Engler’s administration) If Chief Justice Taylor is returned to the bench, he will have faced Michigan voters three times, after being appointed by a governor who had to answer to the people for his appointment.
It’s true that incumbent judges generally have a better shot at winning re-election, but this is true for every officeholder – from school board members to Senators. Under “merit” selection, judges face no real opponents, only an up-or-down vote, and are returned to office more regularly than Politburo members in the old Soviet Union.
I’ve heard arguments that the federal system for choosing judges is analogous to “merit” selection because federal judges never face elections. True, but as I have said before, federal judges are chosen by Presidents that are directly accountable to the people and confirmed by Senators that are directly accountable to the people. In fact, judicial nominations have become such an important issue to Americans that candidates for the White House and the Senate devote entire campaign speeches and television ads to informing voters what type of judges they would put on the courts. More importantly, in making a judicial nomination, the President is not bound by the choices of an unelected commission. If the federal system and “merit” selection were truly equivalent, then the President would be forced to pick from a list of three names supplied by the American Bar Association and the American Trial Lawyers Association.
So let me get this straight: A judge chosen by a tiny tribunal of unelected special interest groups somehow represents the voice of the people better than a judge chosen by an elected governor who had to go before every voter in Michigan against real opponents on three separate occasions? Is that really what “merit” selection supporters believe?
Posted by Dan Pero in the categories: Judicial Elections, Michigan
One Response to “Mulling Over Michigan”
What follows is an excerpt from the full article at:
http://www.attorneybutler.net/2008/09/cliff-taylors-c.html
On Saturday, September 27, I wrote a piece called MERIT SELECTION AND JUDICIAL ELECTION–CLIFF TAYLOR’S PATH TO THE MICHIGAN SUPREME COURT outlining Cliff Taylor’s rise to the Supreme Court, and suggesting that he is not necessarily the poster child for the proposition that a system of judicial election like we have in Michigan is superior to a system of merit selection, varieties of which have been suggested in other states. I stated that I was not an advocate of merit selection, but that discussion of the merits of the current system should take place.
This prompted a response today from Dan Pero of the American Courthouse blog, which is run as part of the American Justice Partnership. In a piece called MULLING OVER MICHIGAN, he refers to and links to my article as evidence of occasional “fringe arguments” suggesting that the system of electing judges in Michigan does represent the voice of the people. Pretty odd for a Pro-Life, Roman Catholic, fiscal conservative, family value, small government oriented, heterosexual guy who votes Republican more often than not to be called a fringe anything.
Mr. Pero (or the intern or staff that writes his stuff) acknowledges that the federal system provides for Presidential appointment of judges and no election. But that is okay, as the President has to run for election. (Of course, second term Presidents can’t run for re-election, though I think they can still appoint judges.) He acknowledges that in Michigan most judicial vacancies on the Court of Appeals and Supreme Court are filled by appointment by the Governor. Again, that is okay because a Governor is elected, and are accountable to the people if he/she runs for re-election. (Again, a term limited Governor in his/her final term can still appoint judges.) Mr. Pero, at least for purposes of this article (and his staff might want to check his prior posts for consistency of position on this), is in favor of selection of judges other than by direct election, if whoever is doing the selection is at some point, somehow, in the past, if not in the future, is or has been elected.
So, if the Governor appoints the merit selection board, are the selections of the board okay because the Governor is elected. If the merit selection board is selected by the legislature or if the membership of the board is ratified by legislative act, are the selections of such a board okay because the legislature must stand for election. Sounds like Dan would be on board with such arrangements, if you read his current post, but then you should probably not read some of his older stuff. Or the articles or documents he links to. I am not sure he does.
Dan Pero acknowledges that judicial incumbents have a better shot at re-election, but he says that is true of all incumbents Senators, Representatives, etc. I don’t think Dan has read his Michigan election rules, which state, that only judicial candidates carry the incumbent designation. No other officeholder will carry that designation on the ballot, from President down to Drain Commissioner. Good solid Republican Reps. like Thad McCotter and Joe Knollenberg will not benefit from the incumbent designation on the November 4 ballot. But Cliff Taylor will.
And why is this, you might ask.