From the Judge's Chambers ...

"It Ain't Necessarily So"

By William C. Whitbeck

2012, as we all know given the barrage of ads that is appearing on our TV sets, is an election year. And I think most of us, despite the incessant pounding that we receive over the airwaves and elsewhere, like elections. In the grand sweep of history, we have come to realize that while free elections may not always result in good government, rigged elections or no elections at all generally produce bad government, or far worse.

It was therefore with amazement that I picked up a recent edition of the Detroit Free Press and learned from a guest columnist that a group of which I was a member—the Judicial Selection Task Force—had proposed to “eliminate [citizens’] right to vote for judges …”

The guest columnist, attorney D. Randall Gilmer, contended that the Task Force recommended replacing the citizens’ right to vote with an unelected commission. (We who live in the rather small world of judicial politics refer to this system with the evocative moniker of “‘merit’ selection.”) Mr. Gilmer then ticked off some of the problems with merit selection and ended by asking whether the residents of this great state should have the “ability to hold . . . judges accountable—rather than leaving such a task to people who are unelected and not accountable to us?”

My answer to this question is and has been for some time a resounding yes. I have long contended that election of judges and justices, while far from perfect, is the best method for selecting members of the judiciary in Michigan. We have a considerable history of electing our judges and justices and by and large it has served us well. So what, then, was wrong with Mr. Gilmer’s column? Just one thing: the Judicial Selection Task Force did NOT make a consensus recommendation for merit selection!

In fact, even the most casual reader of the Task Force’s April Report—written in the plainest English we could manage—would recognize that rather than eliminating judicial elections we proposed to expand them!  We recommended doing away with our bizarre system of nominating supposedly non-partisan candidates for the Michigan Supreme Court at our partisan party conventions and replacing that strange and less-than-wonderful process with non-partisan primary elections. In short, we should nominate the seven justices of the Supreme Court just as we nominate the other 650+ judges in Michigan.

Where, then, did Mr. Gilmer go wrong? Charitably, I suggest that he did not read the Report very carefully. It is true, and the Report reflects, that many members of the Task Force believe that the best method of selecting Supreme Court justices is by a bipartisan nominating commission modeled on the processes used elsewhere

But the Task Force throughout its deliberations placed a very high value on consensus. There was no consensus on merit selection. We therefore did not adopt it as one of our recommendations and this the Task Force Report also reflects. This Mr. Gilmer should have known.

And we also proposed to make our judicial elections better. In the increasingly important area of campaign finance, for example, we recommended requiring full disclosure of all contributions of whatever type and from whatever source. If money is the mother’s milk of politics, then at least we ought to know, and know in a timely fashion, the origin of that milk. And this Mr. Gilmer should also have known of and perhaps even commented upon, rather than chasing a non-existent but very convenient windmill.

There is a revival of Porgy and Bess playing on Broadway. One of its characters insists in song that “It Ain’t Necessarily So.” So it was in Mr. Gilmer’s guest column