By Lee Dryden
BridgeTower Media Newswires
DETROIT - The Michigan Supreme Court tends to be off the radar of the general public - except at election time.
That's when ubiquitous television commercials bring justices' names to the forefront. Among the most memorable is the infamous "sleeping judge" ad targeting former Chief Justice Clifford W. Taylor in 2008.
The ad featured an actor rather than actual court footage, but Taylor was defeated that year by Diane M. Hathaway.
But, this year, while the incumbents have run some television ads in the campaign's final weeks, big bucks aren't being poured into efforts to influence voters ahead of the Nov. 8 election.
Justice David F. Viviano faces Wayne County Circuit Judge Frank S. Szymanski for a full eight-year term while Justice Joan L. Larsen is opposed by Wayne County Circuit Judge Deborah A. Thomas for a partial two-year term.
The ballot doesn't show party affiliations, but the incumbents are backed by Republicans while the challengers are nominated by Democrats. Republicans hold a 5-2 majority on the court.
Doug Dern, nominated by the Natural Law Party, is seeking the longer term, while Kerry L. Morgan, nominated by the Libertarian Party, is running for the shorter term.
So why are the high court contests out of the spotlight this year?
Law professors largely cited the current court's congenial reputation that is noticeable in contrast with the rancor of previous terms. Another factor is the crowded political landscape with a vigorous presidential contest that leaves little room for attention - or money - for contests much lower on the ballot.
But the court will likely be back in the spotlight four years from now as both sides gun for an open seat that will be created when Justice Stephen J. Markman is barred from seeking re-election due to the judicial age limit.
'Better atmosphere'
The most significant reason that there isn't a more concerted effort to defeat Viviano and Larsen is the high court is "less ideological than it has been in times past" as only Markman and Chief Justice Robert P. Young Jr. are still on the court from its "ideological days," said Robert A. Sedler, distinguished professor of law at Wayne State University Law School.
"There is still a conservative majority, but more decisions are unanimous or nearly so," he said. "The court is working more as an institution.
"These justices are respected by a number of liberal - and Democratic - lawyers, myself included. So there is no effort by the Democratic party to go 'down ballot' - with [Hillary] Clinton likely to carry Michigan - and to try to defeat them.
"It was different with Cliff Taylor in 2008, when liberal lawyers were strongly opposed to him, and the Obama campaign gave surplus campaign funds to the Michigan Democratic Party in a successful effort to defeat him."
Richard D. Friedman, the Alene and Allan F. Smith professor of law at the University of Michigan Law School, said a factor in the diminished attention on the high court contest is that "the presidential campaign has sucked so much air from everything else."
He acknowledged that "the better atmosphere on the court" could be a factor, as well.
"Some years ago, the court was acting like a bunch of children, and that certainly drew attention to it," Friedman said. "Principally because of changes in membership, the court now acts far more professionally and congenially. That is boring, the way a court should be."
The low-profile Supreme Court race is "about money in many ways," said Ronald J. Bretz, a distinguished professor emeritus at the Western Michigan University Cooley Law School.
"The Dems have spent millions of dollars attempting to unseat the Engler appointees on the court," he said. "Remember 'Taylor, Markman, and Young. Oh my'? It was a complete failure. Taylor is the only incumbent to lose in a long time and the sleeping judge ad had something to do with it.
"But also, Cliff Taylor was not extremely popular with lawyers and judges - the folks who tend to vote more in judicial elections than the general public. In terms of the current incumbents, they do not have that baggage. Viviano is fairly well-liked and Larsen is too new. Other than she clerked for [the late U.S. Supreme Court Justice Antonin] Scalia, we really know nothing about how she will approach cases."
Bretz agreed harmony among justices also could be keeping this election out of the spotlight.
"Candidates challenging incumbents can no longer say that it is a dysfunctional court as it was under Taylor," he said.
Most voters are likely not thinking about judicial elections with the "presidential campaigns bombarding our senses like never before," said Lawrence A. Dubin, a professor of law at the University of Detroit Mercy School of Law.
"It seems like the contentious Michigan Supreme Court elections of the past decade or so started to cool off in 2014," he said. "Perhaps also the large amounts of money being spent in those past elections has diminished - at least for now.
"The Michigan Supreme Court is no longer the laughingstock of the country as the current justices now seem to have respect for each other in carrying out their official responsibilities."
Dubin said past bickering over personal matters created an appearance that the court was composed of political operatives rather than "fair, impartial and independent justices."
"Perhaps that unfortunate history is partly a consequence of having the candidates being selected by the political parties but running under the guise of being non-partisan," he said.
Looking ahead
Bretz urges everyone to enjoy the "relatively peaceful and boring Supreme Court election" as it's not likely to be so quiet four years from now.
Jurists cannot seek re-election in Michigan once they turn 70. Markman's term expires Jan. 1, 2021, and he turns 71 in 2020.
Both parties are likely to make a strong push for the seat in a rare opportunity to avoid the difficult task of unseating an incumbent.
"2020 will be huge," Bretz said. "Nothing like an open seat. They do not happen very often. Expect all the big money to come out for that one.
"And hopefully, we will get some good candidates."
Published: Fri, Nov 04, 2016
