By Katie Vloet
U-M Law
Three Michigan Supreme Court justices discussed during a talk at Michigan Law whether Michigan’s political party nomination process makes the public question their independence—even though they are strictly bound by the rule of law, not political leanings.
“The cost is the public’s perception of the justices’ independence,” Justice Bridget Mary McCormack said at the Jan. 21 discussion.
The justices also said that fundraising is necessary in the election process, but that donations should not be used in an attempt to sway the judges’ opinions.
“You can’t run a campaign … unless you have resources,” said Justice David F. Viviano. “Sometimes people who make donations think you should rule in their favor,” he said, but the justices “are focused on following the rule of law. We have to rule the right way, even if it means losing the next election.”
“If you think you’re buying something, you’re wasting your money,” added Justice Joan Larsen, to which McCormack quipped: “It’s not the strongest campaign pitch.”
The three justices said they are so focused on the rule of law that they can recall a case by the issue they are deciding but not always by the names of the litigants.
State Supreme Court elections are nonpartisan, but the parties are involved in the process leading up to the election. McCormack won her election in 2012; she had been endorsed by the Democratic Party. Viviano and Larsen were appointed to their positions by Governor Rick Snyder, a Republican. Viviano then won his election in 2014 and was backed by the Republican Party.
McCormack said she would prefer a nonpartisan nominating process, and Viviano added that receiving a partisan nomination for a nonpartisan judicial seat “can be very confusing” for the public.
Larsen will run for election this year for the first time—something she never anticipated doing. When asked about the tenor of such a campaign, she said, “I haven’t been through it yet, but I’m rooting for cordial.”
Larsen, who clerked for Associate Justice Antonin Scalia on the U.S. Supreme Court, said the state court “is very collegial. … We actually work together to try to solve problems in a way the U.S. Supreme Court does not” always do.
All three speakers have strong ties to Michigan Law. Larsen taught at the Law School from 1998 until her appointment to the Supreme Court last year, with a break in 2002 and 2003 when she served as deputy assistant attorney general in the U.S. Department of Justice Office of Legal Counsel. McCormack taught at the Law School from 1998 until her election in 2012, including nearly a decade as associate dean for clinical affairs. Viviano graduated from the Law School in 1996, then practiced until 2006, when he was elected to the Circuit Court. He later served as chief judge of the 16th Judicial Circuit and Macomb County Probate Courts.
The discussion was sponsored by the Federalist Society and cosponsored by the Michigan Election Law Project, the Frank Murphy Society, and the American Constitution Society.
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