Thus Spoke Justice O’Connor
February 10, 2010
Former U.S. Supreme Court Justice Sandra Day O’Connor has been a longtime public servant and for that she deserves the thanks of a grateful nation. But her crusade to abolish voter participation in judicial selection and turn the process of picking judges over to a cabal of elites is verging on crack-pottery.
Her latest outburst came in Michigan where she appeared at a forum sponsored by Wayne State University Law School and the Michigan chapter of the American Board of Trial Advocates. Among the honored guests were Democratic party hack Mark Brewer, Michigan’s deeply politicized unions, and the state’s powerful trial bar – the same crowd that tried unsuccessfully to hijack Michigan’s Constitution by unseating elected judges and gerrymandering legislative districts to suit their ideological ends.
It’s sad that Justice O’Connor would lend her considerable prestige for use as cover to a gathering of such rank political partisans. Even so, her arguments deserve to be taken seriously, so let’s have a look.
“There has to be one safe place in our system of government where decisions are based on the law and people can be fair and impartial,” said Justice O’Connor.
Does she really mean this? Does she not know that the elected officials of Michigan’s Executive and Legislative branches are all bound by exactly the same oath as Michigan’s Judiciary – the oath to “support the Constitution of the United States and the constitution of this state?” Is she really implying that Governor Granholm and Michigan legislators are operating outside the law? Or that their duty to Michigan’s Constitution is somehow less important?
“In order for judges to dispense law without prejudice, they need to be certain they won’t suffer political retribution,” said Justice O’Connor.
So are all elected judges in the U.S. – who presumably face possible “political retribution” every time they go before the voters – unable to “dispense law without prejudice?” Do we really want any public servant in a democratic society to be “certain” that his or her actions are so completely insulated from public accountability that he or she can’t be removed from office?
“Being right has to be more important than being popular,” said Justice O’Connor.
Very true, Justice O’Connor. But who gets to decide what is “right?” Here we get to the heart of the matter. Justice O’Connor and her allies in the “merit” selection campaign believe elites should be making this decision, not voters. They want citizens to give up their right to vote for judges and trust that the whole affair will be better handled by elites, by which they basically mean elite lawyers.
I don’t doubt Justice O’Connor’s sincerity, but unfortunately her comrades in arms at that Michigan symposium are not so public-spirited. They have strongly partisan, deeply ideological agendas. For many, the ends truly justify the means – even if the means require doing away with a basic democratic right like voting. And if a distinguished jurist like Sandra Day O’Connor is willing to help them further their political ends, they’re happy to oblige her.
CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough
January 26, 2010
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.
Democrats vs. Michigan Health Care Jobs
December 3, 2009
Today’s Detroit News ran a commentary piece I wrote, putting the spotlight on Michigan Democrats’ efforts to help their trial lawyer buddies at the expense of Michigan jobs. You can find the piece here.
Michigan Court Power Grab
November 19, 2009
Today’s Detroit News published an article I wrote to shine the light on the latest power grab attempt by Michigan’s liberal Supreme Court justices. You can read it here.
Activists On Michigan Supreme Court
August 18, 2009
Once again, it matters who sits on a state’s Supreme Court.
This AP story (printed in the Chicago Tribune) notes that Michigan drivers will have to pay about $20 extra this year just to pay for a recent decision of the Michigan Supreme Court.
As the story notes,
The court last month voted 4-3 to force the Michigan Catastrophic Claims Association to fully reimburse insurance companies for two brain-damaged men’s round-the-clock nursing care.
The association of no-fault insurers, which was created in 1978 to spread unlimited medical and rehabilitation expenses for severely injured crash victims among all motorists, compensates insurers once claims exceed $460,000.
* * *
Republican Justice Robert Young Jr. and two other GOP dissenters called the ruling “an expensive mistake for which every policyholder in Michigan will pay.” The MCCA said it raised the yearly assessment on motorists from $104 to $124 in anticipation of the decision — a 19 percent increase instead of what would have been a 4 percent jump to $109.
So what does this have to do with judicial elections?
As writer David Eggert noted, “The decision is an example of the importance of last November’s state Supreme Court election, when Democrat Diane Hathaway unseated Republican incumbent Clifford Taylor. Two days before leaving the bench, Taylor joined in a 4-3 ruling in favor of the MCCA. When Hathaway took over, the court reconsidered the case and ruled the other way.” In the minds of many of us here, Hathaway’s election marked a victory for judicial activists.
But the basic point is that it matters who sits on a state’s Supreme Court. And that’s why the people, rather than the trial lawyers, should get to decide who does.
Obama’s Auto Task Force Fails To Protect New GM From Tort Lawyers
July 9, 2009
In today’s editorial pages, the Wall Street Journal reports that Obama’s Auto Task Force tried to keep the new General Motors from having liability for future tort claims. Chrysler was succesful in securing such an arrangement, “[b]ut 11 state Attorneys General and a group of tort lawys creid foul.”
Here’s an excerpt:
In its original reorganization plan, the Administration even proposed to leave behind in the old GM all tort claims arising from cars manufactured before bankruptcy. That would have meant that all past, present and future claims related to cars GM produced before June would have had next to no chance of meaningful recovery, as they would have had to stand in line with every other unsecured creditor of the bankrupt firm.
Read the full editorial here.
Making Michigan A “Very Dangerous Place” To Do Business
April 1, 2009
Will more lawsuits turn Michigan’s economy around? The Democrat-controlled Michigan House of Representatives seems to think so, after approving legislation last week making it easier for trial lawyers to file abusive lawsuits against pharmaceutical and bioscience firms. These companies support around 12,000 jobs and drawing $355 million in R&D investment into Michigan, according to a Manhattan Institute study. That makes them the one bright spot in Michigan’s otherwise dismal economy – and a juicy target for fee-grubbing personal injury lawyers.
Why have pharmaceutical/bioscience companies invested in Michigan? Back in 1996, Michigan adopted a “drug shield” law that protects them from litigation against products that have been approved after rigorous testing by the U.S. Food & Drug Administration (FDA). That law made Michigan a model for states competing to attract high-paying bio-tech jobs.
As the Detroit News recently editorialized, repealing the law “would tell all prospective investors that Michigan is a very dangerous place in which to do business.” That’s exactly the message the Michigan House is now sending at exactly the wrong moment.
The Michigan Senate can put a stop to this madness. They should tell the trial lawyer lobby to take their abusive litigation elsewhere. Michigan needs more jobs, not more job-killing lawsuits.
Repealing Michigan’s Drug Shield Law: “A Step In The Wrong Direction”
March 19, 2009
The Detroit News published an important editorial yesterday urging Michigan lawmakers not to repeal the state’s drug shield law – which protects pharmaceutical companies from abusive litigation and which the trial bar has tried for years to reverse. A state House committee is scheduled to take up the bill today. Highlights:
Following the law’s adoption “investments in bioscience have grown in Michigan more quickly than in other parts of the country. According to a 2008 report…Michigan during the prior six years produced academic research valued at $910 million in biosciences. During that period, 2,225 patents were awarded to researchers in Michigan, primarily in pharmaceuticals. Additional venture capital investments totaling $269 million, again primarily in pharmaceuticals, were directed toward this state.”
Repealing the law “would tell all prospective investors that Michigan is a very dangerous place in which to do business….In a state with the nation’s highest unemployment rater and an economic base much in need of diversification, this legislation is a step in the wrong direction.”
As the Manhattan Institute reported in an update to its Trial Lawyers, Inc. series, life sciences companies have invested $355 million in R&D in Michigan, supporting 12,000 jobs paying an average of $60,000. But, the Detroit News points out, “trial lawyers have long chafed at the limitations imposed” by the law – a polite way of saying the state trial bar wants to turn drugmakers into a plaintiffs’ lawyer ATM machine. They don’t just want to open drugmakers up to future lawsuits, they want to make the repeal retroactive so they can sue going back to 1996.
Here’s one question legislators considering this bill might ask: How many jobs has the trial bar created in Michigan over the last 13 years? Or here’s a better one: How many jobs have trial lawyers destroyed?
Will Michigan Justices Side With Taxpayers?
January 27, 2009
Last fall, Michigan’s Supreme Court voted to close several “convenience” offices used by justices who lived outside the Lansing area. It was a responsible step toward fiscal sanity and a welcome show of solidarity with Michigan’s long-suffering taxpayers.
After all, taxpayers had just recently sprung for the new $126 million Hall of Justice – an investment of taxpayer resources that ought to be enough to house seven justices in relative luxury. Plus, the state faces a combined budget deficit of $920 million, according to the most recent figures from Governor Granholm’s office, and closing second offices could save an estimated $500,000 per year.
But Michigan taxpayers shouldn’t count their savings just yet.
The vote was decided by only a 4-3 margin. But Chief Justice Clifford Taylor, who shepherded the measure through the Court, was defeated in his race for re-election, leaving Justice Robert Young to carry on the fight. Taylor’s replacement, Diane Hathaway, has been mum on how she would vote if the motion comes up for a re-vote. Her official stance when asked if she was willing to give up her Detroit “convenience” office: “No comment.”
Leading the charge against fiscal responsibility is Justice Betty Weaver, who is clinging to her $60,000+ per year digs in Traverse City just as ferociously as she tried to keep her taxpayer-funded car last year.
Message for Justice Weaver and Justice Hathaway: This is not a hard call.
Last year alone, 81,000 Michigan residents lost their jobs and the University of Michigan estimates another 132,000 workers will join the ranks of the unemployed over the next two years. Thousands of these and others in our state have lost their homes to foreclosure. Is it really asking so much of our high court judges to give up this perk of office at a time when so many in our state are suffering?
I knew justice was blind, but does it have to be dumb too?
Merry Christmas And Happy Holidays!
December 24, 2008
American Courthouse wishes all our readers a joyous Christmas and a safe, happy New Year. I’ll be taking a few days off from the blog, but please rejoin us on January 5th.