Commentary: Reforming Michigan’s Supreme Court

Apr 26, 2012

Michigan Supreme Court Justice Marilyn Kelly cares deeply about our highest court, on which she has served for sixteen years.

For a long time, a number of things have bothered her about the court.  A University of Chicago law school study four years ago ranked Michigan’s Supreme Court dead last in the nation. Among its criteria: “Judicial independence from political and outside influences.”

That ranking wasn’t surprising, when you consider that all seven justices are nominated by political parties and elected after highly expensive campaigns, What’s worse, in recent years most  campaign money in high court races has been given in a way not subject to disclosure under our current campaign financing law.

A cynic might say that not only do we have the worst supreme court that money can buy; we don’t even know who bought them.

Well, sixteen months ago, Justice Kelly, who was then Chief Justice, joined with federal appeals Judge James Ryan to head an ambitious and completely bipartisan Judicial Selection task force.

The panel included conservatives and liberals, lawyers and non-lawyers. Their goal was common-sense, practical solutions.

Their study is being released today, and I talked with Justice Kelly about it last night. Its conclusions are these: First, the panel urged that those behind supreme court campaign ads fully disclose the sources of their funding. Second, they want radical changes in the process by which justices are selected.

Today, they are nominated at the Republican and Democratic state conventions. Instead, the task force would like to see open non-partisan primaries for the supreme court. This would, they note “remove a powerful source feeding the perception that Michigan justices are partisan.” Actually, many of the task force members would prefer a state constitutional amendment to have the justices appointed by the governor.

Nearly half of Michigan’s justices have gotten to the high court by appointment anyway, when a sitting justice dies or resigns, though they’ve had to run for re-election later.

The task force wants the Secretary of State to publish voter guides for state supreme court candidates. They want campaign ads monitored for falsehoods by a citizens’ committee. They‘d also end the rule that no one can run for election or re-election to the Supreme Court after they reach the age of seventy.  What surprised me was that every member of the task force evidently agreed to all these provisions. My guess was this meant that nobody was in love with every recommendation, but that they worked hard to find common ground all could tolerate.

“That’s’ absolutely right,“ Justice Kelly said. “Nobody agreed wholeheartedly one hundred percent,” but they wanted to reach consensus. To an amazing degree, they did.

Our system of selecting justices for our higher court has long needed reform. Now, we have a road map for how to do it.

Sadly, Justice Kelly has to leave our state’s highest court in January; she turned seventy this term. She also knows that a lot of wonderful analyses like this gathering dust on shelves.

She doesn’t intend to let that happen. In a dozen pages, her  Judicial Selection Task Force has outlined a path to a supreme court that would be far worthier of our state.

The next step is up to us.