Commentary: The governor’s Supreme Court appointment

Feb 28, 2013

Yesterday, Governor Rick Snyder finally filled the vacancy on the Michigan Supreme Court created when disgraced Justice Diane Hathaway resigned last month, just before pleading guilty to felony bank fraud. His pick was a mild surprise; David Viviano, the young chief circuit judge in Macomb County.

Later that afternoon, I was pleasantly surprised that the governor called me to explain the process by which he made this appointment. I suspect this was because I have talked and written a lot about the Michigan Supreme Court, which didn’t have the highest reputation, even before the Hathaway scandal.

Surveys showed that the court was poorly regarded by legal scholars, in large part because the selection process seems to have become more and more partisan, as have many of its rulings.

Additionally, campaigns for the high court have become nasty, personal, and have featured scurrilous attacks, often paid for by shadowy groups the source of whose financing is never disclosed.

Last year the Michigan Judicial Selection Task Force, a completely bipartisan panel led by three nationally distinguished jurists -- two Republicans and one Democrat, produced an impressive blueprint for court reform. The panel included a number of respected and prominent non-lawyers of every political persuasion.

They were unanimous in their recommendations. In cases where a justice resigns, they recommended an advisory committee be appointed to screen applicants and hold public hearings. The idea would be to present the governor with a list of three to five names, any of whom he could then appoint to the court.

Filling court vacancies is not a rare occurrence; nearly half of our Supreme Court justices have first been appointed. When it was clear that Governor Snyder wasn’t going to do this, I expressed dismay.

Yesterday, however, he told me he had engaged in an intensive vetting process. “We had a pretty open process,“ he said. “Anybody could apply for a position,” or be recommended by others. Once they did, he said, his legal team checked them out, and Judge Viviano’s qualifications were then reviewed by the State Bar’s Judicial Qualifications Committee.

His biggest concern, the governor told me, was not ideology but integrity. He said when he talked to Judge Viviano, there was no discussion of social issues at all.

Well, I appreciated the governor explaining his thinking. His process, which he said he was using for judicial appointments generally, seems a clear improvement on what other governors of both parties have usually done, which has too often been to pick the candidate with the most electable Irish name.

But I am troubled that the governor seemed to have little or no interest in the judicial task force’s recommendations in general. He said, “Well, they have their ideas; but there are other ideas.”

Somehow I think a set of reforms endorsed by three nationally distinguished judges, including Sandra Day O’Connor, shouldn’t be lightly dismissed. The governor did say he thought campaigns for our highest court had been too partisan, but was unwilling yesterday to say that he favored any of the task force’s suggested reforms, including requiring full disclosure of campaign contributions.

Governor Snyder did say he was still thinking about judicial reform, and would have say more publicly in the future. I hope that will be soon.  

Jack Lessenberry is Michigan Radio’s political analyst. Views expressed in the essays by Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.