Justices for sale?

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    lead art 6-6Demanding increased public transparency, less politics and a more informed electorate, a bipartisan task force has placed the searchlight on the state’s high court, calling for independence among those who sit on the court. 

    The Judicial Selection Task Force, led by two veteran Michigan jurists, Supreme Court Justice Marilyn Kelly and Senior Judge James L. Ryan of the U.S. Sixth Circuit Court of Appeals, concluded that how judges for the Michigan Supreme Court are selected is not only problematic in many ways, but also erodes public confidence in the court. 

    “The current process of selecting justices undermines public trust and confidence in the impartiality and independence of the Michigan Supreme Court,” Kelly said. “Polling has consistently shown that a majority of Michigan voters believe that judicial campaign contributions have influence on the decisions judges make. As the saying goes, perception becomes reality, a judiciary that is not perceived as impartial is a compromised judiciary. That’s not fair to anyone, not to voters and not to the judges.”

    Justice Kelly is correct. For a long time the Michigan Supreme Court has been viewed as the hub for extreme partisan politics masking as a judicious voice on the Constitution and in the affairs of men and women in this state. 

    To watch how decisions on the court have been handed down sometimes in favor of who has deep pockets as opposed to a clear interpretation of the law often has run contrary to what the court should be about: equal protection under the law, no matter how deep or empty your pockets are. 

    Because judges of the Michigan Supreme Court are constantly running for office, and thus need a lot of money to do so, some are inclined to believe that that their decisions are all politically motivated. 

    Because the judges on the court, unlike federal judges, stand the risk of losing elections for making unpopular decisions, it is difficult to comprehend how they can decide complex cases during an election season when they themselves are up for reelection. 

    Will they favor cases tied to groups or companies that donated the most money to their campaigns? 

    Will their decisions be strictly on the merit of the case and what the Constitution says or will it be about the groups tied to the case?

    That is why one of the recommendations of the Judicial Selection Task Force is for a public disclosure of all judicial campaign spending. 

    In 2010, the Michigan Supreme Court campaign was rated the most expensive in the nation and more than half of all spending in the race was not reported. 

    The study panel led by Kelly also recommended an open primary system where voters can select justices on the nonpartisan section of the ballot rather than the partisan nomination process that now exists. The current process portrays judicial candidates more or less as political activists rather than interpreters of the law. That in turn takes away credibility from the candidates and the seriousness of the office they are seeking. 

    The panel recommended increased information about Supreme Court candidates, requiring the Secretary of State  during each election cycle to create a voter education guide to help voters overcome misinformation and a lack of facts about the candidates who are vying for the high court. In addition, the panel is proposing the creation of two impartial citizen bodies – one to monitor judicial conduct and advertising, and another to screen candidates for appointment to fill Supreme Court vacancies to help build confidence in the impartiality of the judicial system. 

    A  constitutional amend–ment is also proposed for the removal of the 70-page ceiling for candidates seeking election or appointment to a judicial office. 

    During an interview Justice Kelly said, “I think the people need to be better educated about who their candidates are. I think people will do their job if they get the right information. All we need is to do a good job of putting the qualifications and the disqualifying factors of the candidates running for the court on the voter guide. People will read that, go to the polls and the system would work better.”

    Judge Ryan of the U.S. Sixth Circuit Court of Appeals said during the panel meetings “there was a consensus that partisanship doesn’t belong in Michigan’s highest court and neither do special interest groups and undisclosed spending. The practical, common sense reforms we have recommended will help elevate public trust and confidence in the impartiality of the Michigan judiciary.”

    Rich Robinson, director of the Michigan Campaign Finance Network, issued a report on how independent spenders dominated Michigan’s political campaigns in 2010. 

    According to that report in the race for Supreme Court, incumbent Justice Robert Young (now chief justice) and Judge Mary Beth Kelly from the 3rd Circuit Court in Wayne County were the Republican Party nominees who won easily with margins of 500,000 votes and 400,000 votes respectively. 

    The Michigan Republican Party spent $3.4 million for ads promoting Justices Young and Kelly, out of which only $650,000 was disclosed. 

    On the other side, the Michigan Democratic Party spent $2,450,000 for unreported television ads attacking Young and Kelly. 

    Justice Alton Thomas Davis, who was appointed to the Supreme Court a month before the nominating convention, after the resignation of Justice Elizabeth Weaver, Judge Denise Langford Morris from the Oakland County Circuit Court were the Democratic Party’s nominees. 

    “As with any election where there is undisclosed spending, voters were deprived of important knowledge of who was financially supporting whom. However, the lack of accountability in Supreme Court campaigns is particularly troublesome,” the report stated. 

    According to the report, the U.S. Supreme Court ruled in Caperton v Massey Coal Company that a judge should not participate in a case involving a major campaign supporter because the financial support may introduce an unacceptable probability of bias. 

    “That is, a judge should not rule in a case involving a party who had a
    substantial financial role in the judge’s winning campaign because it deprives the financial supporter’s legal opponent of his due process right to an impartial court hearing,” Robinson’s report stated.  

    University of Michigan law professor and candidate for the Michigan Supreme Court Bridget McCormack applauded the Judicial Selection Task Force. 

    “The proposed reforms track two themes: we should get partisan politics out of our process for selecting our justices and we should bring real transparency to the selection process. I wholeheartedly agree with both, and I think most people do.” McCormack said. “A transparent, non-partisan process for selecting the justices who make up our high court would surely go a long way toward producing independence and integrity in our judiciary.”

    Bankole Thompson is the editor of the Michigan Chronicle and the author of a six-part series on the Obama presidency, including “Obama and Black Loyalty,” published last year. His latest book is ”Obama and Christian Loyalty” with an epilogue written by Bob Weiner, former White House spokesman. His upcoming books in 2012 are “Obama and Jewish Loyalty” and ”Obama and Business Loyalty.” Listen to him every Thursday morning on WDET 101.9 FM Detroit and every Sunday, 9 to 10 p.m., on “The Obama Watch” program on WLIB 1190 AM-New York. E-mail bthomspon@michronicle.com.

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