By Judge William C. Whitbeck
The Michigan Supreme Court has lately been much in the news. Justice Betty Weaver’s unexpected departure from the Court and Governor Granholm’s appointment-minutes later-of a Court of Appeals judge to fill the resulting vacancy were both startling and important events.
But the court has been growing in importance for a number of reasons. Among them is the court’s role in reapportionment. Reapportionment is a crucial element of the political process; whoever draws the lines for Michigan’s electoral districts heavily influences political outcomes in our state for the next ten years. And under most circumstances, the Michigan Supreme Court makes the ultimate decision between competing Republican and Democratic reapportionment plans.
Also, courts have increasingly, for better or for worse, become the arbiters of last resort on policy matters. If interest groups or political parties cannot get their way in the Legislature on policy issues, it is common for them to turn to the courts as an alternative method of establishing their positions as matters of law. And the Michigan Supreme Court has not been shy about marching into the policy battlefield, albeit with very mixed and often changing results.
So, the court is important by virtue of its powers and political because of those same powers, particularly with respect to reapportionment and policymaking. And it is political for one other reason: like all judges in Michigan, members of the Supreme Court are elected. The process at the lower court level is, however, straightforward and non-political. Incumbent judges go on the non-partisan ballot by filing a certificate of incumbency while non-incumbent challengers file nominating petitions signed by a specified number of voters. The political parties play no official role in this process.
But there is a twist when it comes to the justices of the Supreme Court, a twist that applies uniquely to these seven justices out of the more than 600 judges and justices in the state. Contrary to popular belief, this twist is not contained in the Michigan Constitution. All the Constitution says concerning the election of Supreme Court justices is they shall be nominated as “prescribed by law” and “elected at non-partisan elections as provided by law.”
The statute in question, MCL 168.392, contains the bewildering twist. It states that the candidates for the non-partisan position of Supreme Court justices may be nominated at the conventions of the partisan political parties!
Thus, we have the bizarre spectacle of candidates for justice of the Michigan Supreme Court emerging from the party conventions-with highly partisan nominating speeches still ringing in their ears-to campaign for an office that the Constitution designates as non-partisan. It is little wonder that the Court has, of late, consisted of two separate camps that correspond, not coincidentally, with the political affiliations of the justices. And it is no wonder at all, given their political importance, that the political parties and their often anonymously funded outriders spend millions upon Supreme Court elections.
“Reformers” – including dubious groups on the far left associated with shadowy billionaire hedge fund operator George Soros - have, for their own purposes, fixated upon judicial elections. They are seeking to abolish such elections in Michigan and elsewhere by instituting the even more politicized process of “merit selection.”
My response is a modest one. Why not simply provide by law, not constitutional change, that candidates for justice of the Michigan Supreme Court will be nominated by incumbency certificates or nominating petitions, and not by the political parties? This might reduce the current bitter partisan rancor on the court. And every lawyer, indeed every citizen, in Michigan should greet any such reduction with nothing less than profound relief.
Judge William C. Whitbeck is one of 28 judges on the Michigan Court of Appeals. A Kalamazoo native, he is a graduate of the Northwestern University’s Medill School of Journalism and of the University of Michigan Law School. He served as chief judge of the Court of Appeals from January, 2002 to January, 2008. He is the past chairperson of the Michigan Historical Commission, a fellow of the Michigan and American Bar Foundations, and a member of the Michigan Law Revision Commission. In 2007, he won the State Bar of Michigan’s short-story competition with “In the Market,” a story of bootlegging and murder set in Prohibition-era Michigan. He has also completed one novel and is hard at work on a second. He and his wife Stephanie live in a completely renovated 130-year-old home in downtown Lansing. He can be reached at JudgeWhitbeck@AOL.com.
