Commentary: Vacancy in the Court

Jan 8, 2013

A young reporter once asked me how you could tell if a someone was really retiring of their own free will, or being fired. “Well,” I said, “When someone prominent retires, they often announce it well in advance, and they honor them with a dinner. When someone suddenly leaves at ten in the morning on Tuesday, allegedly to spend more time with their family, they’ve been fired.” 

Yesterday, we learned that Michigan Supreme Court Justice Diane Hathaway is “retiring” from the court, barely halfway through her first term. Her retirement was announced right after the Judicial Tenure Commission lodged a formal complaint against her.

That complaint is perhaps the most damning against a sitting judge I’ve ever seen. It claims she violated federal and state laws against fraud, federal money laundering and tax laws, and constitute “conduct that is contrary to justice, ethics, honesty, or good morals.”

None of this comes as much of a surprise. Last spring, WXYZ-TV in Detroit first reported irregularities in the sale of a house she and her husband owned in Grosse Pointe Park.

Two months ago, federal authorities then sued Hathaway and her husband, who is also a lawyer, and have attempted to seize a home they own in Florida for fraudulently hiding real estate they owned in order to get a bank to write off a large mortgage.

Legally she is, of course, entitled to be regarded as innocent until proven guilty. But it is clear that she is in major league trouble, and it is surprising she hasn’t resigned before this.

Hathaway’s so-called retirement will give Governor Snyder the chance to name a replacement justice. Almost certainly, this will turn what had been a four to three Republican majority on the court to a five to two advantage. But here’s something sad about all this:

Less than nine months ago, a bipartisan coalition called the Michigan Judicial Selection Task Force issued a comprehensive report calling for reform in the way we select our justices.

The chair of this task force was none other than former Supreme Court Justice Sandra Day O’Connor. The co-chairs were Michigan Supreme Court Justice Marilyn Kelly and James Ryan, a federal judge from the U.S. Court of Appeals. They took a whole year to study the system.

Among their recommendations was that in a case like this, the governor name an advisory screening commission who would accept applications and conduct public hearings.

Eventually, they would present the governor with a list of three to five highly qualified applicants. They concluded that the governor and the citizens would be able to have new confidence that one of the best persons in the state had been picked for the job.

And it concluded, “The task force respectfully asks Governor Snyder to adopt this practice in his current administration.” 

But to the best of my knowledge, almost nobody is even urging him to do so. Instead, he is likely to pick some solidly Republican judge who the party thinks will be able to win election next time.

Michigan’s Supreme Court has too often been a laughingstock and a disgrace in recent years, and last year’s task force offered an excellent blueprint for improving it.

But tragically, it looks like it will be ignored. 

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.