Fair, independent and impartial jurists of the type idealized in high school civics classes? Forget about it.
In what is shaping up to be the nastiest example to date of partisan politics mucking up what is supposed to be a nonpartisan contest, the campaign to elect three judges to Michigan’s high court has taken a decidedly low road.
“The Supreme Court races are a perfect example of what is wrong with the current process,” say Karen Holcomb-Merrill, executive director of Michigan Common Cause.
The Michigan State Chamber of Commerce, she explains, is “very open about the fact that it has been raising money for Republicans to get them elected.”
On the other side you have the trial lawyers and unions funneling cash into the campaign coffers of the Democrats.
“It is a bipartisan problem,” observes Holcomb-Merrill, “and it is a very significant problem. People need to know that judicial decisions are being made of the basis of the Constitution and laws, not who made campaign contributions.
“I think judges are held to a higher standard. The public becomes more disenchanted when campaign money is involved in judicial races. It is clearly a worsening phenomenon.”
Across the country, from Ohio to Alabama, Florida and Texas, the influence of campaign cash on judicial elections has become a source of great controversy.
In August, the National Center for State Courts released a study the nonprofit group said showed “contradictory opinions on judicial impartiality.” Although 79 percent of the respondents agreed that “judges are generally honest and fair in deciding cases,” 81 percent agreed that “raising campaign funds influences elected judges” and that “courts treat corporations and wealthy individuals better than others.” (To view the full study, visit the Web site.)
To respond to the problem, the center is sponsoring a conference in December to evaluate reform measures and produce recommendations.
Among those attending will be Michigan Supreme Court Chief Justice Elizabeth A. Weaver. According to David Gruber, spokesperson for the court, Weaver is on record as “having concerns about the judicial selection process,” but is withholding specific comments until after the election.
Whether the group that meets in December would go so far as to call for the abolition of judicial elections is doubtful. There is mounting pressure for such sweeping change, but it comes mostly from editorial writers and reform groups.
The most popular proposal is the so-called Missouri Plan, which uses a nonpartisan panel to create a short list of qualified jurists. The governor would then make appointments to the high court from that list. Afterward, every four to eight years, the justices would go before voters for a straight yes or no vote. If a majority approves, they retain their jobs; if not, a new judge is appointed in their place.
For that to happen in Michigan would require a constitutional amendment. Robert Sedler, a well-respected professor at Wayne State University Law School, is among those who doesn’t give such an amendment much chance of passing.
“Too many special interest groups would come out against it,” he predicted.
There are other reforms that will be on the table at the National Center for State Courts conference in December.
Among the ideas that will be debated:
• Public financing of judicial elections.
• Having independent panels provide neutral information on candidates so that voters would not have to rely so heavily on campaign ads.
• Lengthening judicial terms so that elections are less frequent.
• Changing the dates of judicial elections to reduce the extent they are caught up in general election partisanship.
Dead heat
The prospect of reform, if it happens at all, is definitely a thing of the future. Meanwhile, Michigan is facing a critical, highly partisan Supreme Court election that could break all spending records. With three incumbent Republicans running for re-election, there is a chance the conservative majority on the seven-member court will be turned out.
According to a recent poll conducted by political analyst Bill Ballenger, the current race is a statistical dead heat. What is most amazing, said Ballenger, is that nearly 70 percent of those questioned had no preferences in the high court race. There is traditionally a fall off of 30 percent to 40 percent when it comes to voting for justices, explained Ballenger; to have more than two-thirds of the electorate with no opinion at this point in the race, he said, is astounding.
What makes it all the more remarkable is what’s at stake this time out. Because the court will likely have the final say on deciding new district voting boundaries that will be drawn up in response to the 2000 census, it will be in a position to influence state legislative and congressional races for a decade.
Which explains, at least in part, why this race has turned so ugly. Take for example the recent television commercial attacking E. Thomas Fitzgerald, an appellate court judge running for the high court as one of three Democratic party nominees. The Republican Party has produced a hit piece, addressed “Dear opinion leader,” that accuses Fitzgerald of letting a convicted pedophile off with a slap on the wrist. The two other Democrats on the ticket, Detroit attorney Marietta Robinson and Wayne County Circuit Judge Edward Thomas, are then smeared with the same soft-on-crime brush.
Never mind that the commercial has been roundly criticized for being inaccurate and extremely unfair. That didn’t stop the Michigan of Chamber of Commerce from issuing a hit piece of its own. The Chamber of Commerce, taking what would seem to be a detour from its usual role as a promoter of the state’s business interests, two weeks ago sent a big yellow “Get Out of Jail Free” card with the warning: “The liberal justices on the Supreme Court hand this out to criminals again … again ... and again …” An accompanying letter slammed the high court’s two Democrats while praising the conservative majority, three of whom are seeking re-election. The letter also promised that more such missives would be showing up in mailboxes soon.
“I think there’s a tenor to this campaign that we haven’t seen before,” observes Gary Fralick, spokesperson for the Michigan Trial Lawyers Association, whose members have traditionally filled the campaign coffers of liberal judicial candidates. The attacks on Fitzgerald in particular have brought negative campaigning in a Supreme Court race to a “new low,” contends Fralick.
Opponents on the right counter that the Democrats and their allies are anything but blameless.
The Dems shouldn’t expect their current complaints to evoke much sympathy because they were the ones who started the mud flinging earlier this year, says Stephen Safranek, a professor at the conservative Ave Maria School of Law in Ann Arbor.
This summer the state Democratic Party began airing television ads that described the three Republican justices seeking to retain their seats — Stephen Markman, Clifford Taylor and Robert Young Jr. — as “anti-family.” Playing off images from The Wizard of Oz, the TV spot had animated trees intoning “Markman and Taylor and Young, oh, my!”
The anti-family claim stemmed from accusations that the justices were “taking hundreds of thousands in political contributions from the insurance industry and big business” and then handing down rulings in favor of those special interests.
The Dems have taken that same refrain to the Internet, where it has established the Web site as another forum to paint the incumbent conservatives as tools of the state’s insurance, manufacturing and commercial interests.
Fralick defended the attacks as based on campaign contributions and voting records.
Pro-business push
For much of the past 40 years, liberals were able to control the Michigan Supreme Court because of directed efforts of the party and allies such as labor unions and the state’s trial lawyers which poured money into the campaigns of Democratic candidates.
It wasn’t until the mid-1990s that Republicans and their deep-pocketed pals in the manufacturing and insurance industry, as well as the medical establishment and small-business interests, decided influencing the Supreme Court was a priority.
Before that, political action committees representing the state’s business interests focused contributions on legislative and gubernatorial elections. After helping John Engler gain control of the governor’s office and both houses of the Legislature, the GOP and business interests turned their attention to the court. Money now flows to conservative judicial campaigns at a furious rate.
Although their spending failed to do the job in ’96, a renewed effort two years later resulted in the conservatives gaining a 4-3 majority on the court. Soon after the election, Democrat Conrad Mallet Jr. resigned. Engler appointed Robert Young, lifting the Republican majority to an iron-clad 5-2.
Ballenger predicts the GOP candidates will raise a million dollars each in their attempt to retain their seats. And the Democrats, though unlikely to match Republicans dollar for dollar, could set new spending highs as well.
Have it both ways
This success has resulted in an odd dilemma for the Republicans and their allies. First, they promoted the fact that the court needed to be more business-friendly.
“It is becoming increasingly apparent,” Jim Barrett, president of the Michigan Chamber of Commerce, declared in 1995, “that to win both the battle and the war to improve Michigan’s business climate, job providers must become more focused on judicial elections, providing financial assistance to responsible judicial candidates when necessary.”
To make sure the business community knew exactly who to vote for, a group called Michigan Lawsuit Abuse Watch released a ratings guide that ranked judicial candidates based on how their rulings affected businesses. The group, which claims to be a grass roots organization but was started with special-interest corporate money, pointed out that, on a scale of 1-100, Republican Justice Elizabeth Weaver scored an 81. Appellate court judge Taylor, who was appointed by Gov. Engler to fill a vacant slot on the Supreme Court, also scored an 81.
Democrats, frustrated that judges from their party received consistently lower marks, called the report a sham.
Then, after gaining a majority, the new court began overturning established precedent at a rate not seen before.
The business community applauded. In September 1999, the Michigan Manufacturers Association crowed that its PAC contributions “swayed the Supreme Court election to a conservative viewpoint, ensuring a pro-manufacturing agenda, and helping to promote a healthy economic business environment.”
Then the Democrats released a study they claimed showed a pro-business bias under the new Republican majority. The Republicans cried foul, saying the report was unfair.
In September of this year, the Michigan Chamber of Commerce released a report of its own, a purportedly impartial and unbiased study that claimed there really very few cases that broke down strictly along party lines.
Pro-business judges that render unbiased decisions? Can you say “wanting to have it both ways”?
Who needs reform?
Does all this mean it is time to reform the system? Not everyone thinks so. Lawrence Reed, head of the staunchly conservative Mackinac Center for Public Policy, recently penned an opinion piece declaring the current process, for the most part, works just fine.
The way Reed sees it, there can’t be much wrong with a system that “has produced what is arguably the best state Supreme Court in the nation — a body of eminently qualified, experienced, and sensible jurists, the majority of whom believe in interpreting law, not manufacturing it from the bench.”
“Let’s be careful we don’t ‘fix’ what appears not to be broken.”
It should come as no surprise that Reed thinks this is a great court. The Mackinac Center, after all, got its start by obtaining much of its seed money from the insurance industry.
But Reed isn’t the only one skeptical of reform measures.
Political analyst Ballenger observes that going the appointment route offers no guarantee controversy will be eliminated. The labels, he maintains, will be there regardless of whether judges are elected or appointed.
Look at the difference between U.S. Supreme Court justices John Paul Stevens and Clarence Thomas, says Ballenger. One’s a die-hard liberal, the other is ultraconservative.
“I’m not as squeamish about the current (Michigan) system as a lot of other people are,” says Ballenger.
Others, however, see a system that, at the very least, leaves the public with the impression that justices being elected to the state’s highest court are bought and paid for by special interests. That alone is argument enough to change the system. Even the perception that judges are anything but independent is cause enough to change, argue those calling for reform.
“When the courts become politicized,” observes Ave Maria’s Safranek, “ we are all losers.”
Curt Guyette is Metro Times news editor. Contact him at 313-202-8004 or [email protected]
