By Steve Thorpe
Legal News
A recent report called for changes in the way that Michigan Supreme Court Justices are selected. The report recommended public disclosure of all sources of campaign spending, an open, non-partisan primary system and eliminating the current limit of 70 years old for anyone to be elected or appointed to a judicial office. The Michigan Judicial Selection Task Force was led by state Supreme Court Justice Marilyn Kelly and Senior Judge James Ryan of the U.S. Court of Appeals for the 6th Circuit. C. Thomas Ludden is an attorney with Bloomfield Hills office of Lipson, Neilson, Cole, Seltzer & Garin, P.C. His practice focuses upon commercial litigation, professional liability and insurance defense.
Thorpe: In 2003, the American Bar Association decried the increasing influence of money and partisanship in choosing judges, saying "The judicial systems of the United States at the beginning of the 21st Century remain unparalleled in their capacity to deliver fair and impartial justice, but these systems are in great jeopardy." Overstatement or timely warning?
Ludden: This is just hyperbole. There has always been partisan criticism of judicial decisions and partisan influence upon the selection of judges, whether elected or not. The Dred Scott decision in 1857, the Supreme Court packing proposal in the 1930s and the confirmation battles over Judge Bork and Justice Thomas all involved much more partisanship than is seen today.
Thorpe: The report suggests that campaign donors not hide behind groups with vague names but instead "inform the public of their true identity so that voters can weigh the messages in context." How big is the transparency problem?
Ludden: More transparency would be nice, but it probably will not affect the outcome of elections. Most adults have seen enough advertisements to understand that most advertisers have an agenda. More importantly, one of the nice things about living in the information age is that all of us can gather information directly about the candidates, including judges, who are running for office. The information already available should be much more valuable to anyone who wants to be an informed voter than the identity of contributors to advertising.
Thorpe: The task force recommends the establishment of a citizen's campaign oversight committee to monitor the process. Is there any consensus on the need for such a committee, how it would be composed or what powers it might have?
Ludden: There is absolutely no consensus that a new unelected and unaccountable group of "experts" is needed to determine the accuracy of campaign statements. There are already many individuals and groups who publicize their opinions regarding the accuracy of statements during campaigns.
Moreover, the accuracy of statements can often be in the eye of the beholder. For example, this self-appointed task force contends that there is a "real problem" because 86 percent of Michigan Supreme Court cases during the 1990s involved contributors to the justices' campaigns. The task force does not identify who performed this study and did not describe the data on which it was based. This 10-year-old study can be found on the Internet, and it paints a very different picture. First, these contributors were almost all attorneys, not parties to cases. Second, one contributor was the Michigan Attorney General, who appeared in 44 percent of Michigan Supreme Court cases during the 1990s and donated less than one thousand dollars over that same time period. Third, 77 other attorneys for the state of Michigan who appeared in Supreme Court cases made nominal contributions averaging less than $250. Fourth, none of the private attorneys or law firms who contributed significant amounts of money to Michigan Supreme Court races won a majority of their cases, and most fared very poorly. Given these facts, it is not surprising that the actual study never concludes that any Michigan Supreme Court opinion was affected by a campaign contribution.
The actual data, then, does not show that there was a real problem during the 1990s. Fortunately, Michigan citizens no longer have to rely upon committees of alleged experts to tell them what to think, but can investigate on their own and make up their own minds.
Thorpe: The recommendation to switch from a partisan to a non-partisan process is touted in the report as a way to reduce the influence of "party insiders." How would this proposal work?
Ludden: Michigan Supreme Court Justices are currently nominated by the conventions held by political parties. The proposal would replace this form of nomination with a primary system, which is currently used to nominate candidates for the other Michigan state courts. Political parties, however, are still very much involved in the election of judges to other Michigan courts. This proposal changes the process by which candidates are nominated, but there is no reason to believe that it would significantly change the influence of political parties upon the process.
Thorpe: Many members of the task force advocated a switch to a gubernatorial appointment system, much like the one in use in Arizona. What are the two sides of the argument? Wouldn't that change make the process more partisan, not less?
Ludden: There is no system of selecting judges that is free from political influences, whether those influences are considered partisan or not. Even if judges did not rule on the constitutionality of legislation, they would still be interpreting statutes, regulations and the common law and applying these legal principles to different factual situations. Individuals and groups have different opinions regarding how to interpret and apply the law. Therefore, they will always try to influence the selection of judges.
As a result, while its proponents claim that the Arizona system is free from partisan political influences, it is not and never can be. The Arizona system does transfer a significant part of the responsibility for selecting judges from an elected public official who is accountable to the voters to an unelected and unaccountable body that magnifies the influence that attorneys have upon the selection of judges. In other words, not only is the Arizona system less accountable to the citizens whose lives are affected by judicial decisions, but it also increases the influence of one special interest group at the expense of voters.
Published: Thu, May 17, 2012
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