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We elect our judges, but they all get appointed

Mar 30, 2017

There’s always a debate as to whether judges should be appointed or elected. The one thing everyone agrees on, at least in theory, is that judges should be nonpartisan.

Michigan has an odd hybrid system that manages to ensure that all these things are both true and false -- especially as far as the State Supreme Court is concerned.

On paper, the justices are nonpartisan. But in fact, most are placed on the ballot by one of the two major parties, whose members have a pretty good idea how that justice is likely to rule.

And most Michigan Supreme Court justices tend to be appointed before being elected. That’s currently the case with five of the seven sitting justices. Nor is this an accident.

In today’s highly partisan world, justices often resign before their term is up, at least partly to allow the governor of their choice to appoint their replacement.

Here’s why that’s important. On Wednesday, Justice Robert Young, who had been chief justice until the start of this year, announced he was resigning at the end of next month.

Justices are elected to eight-year terms, and Young’s latest term didn’t expire till the end of next year. Young is a Republican, and if he completed his term and didn’t run again, it would have meant an open seat with no incumbent in what could be a good year for the Democrats.

Now, however, Governor Rick Snyder will be able to name a replacement who, you can bet, will be a Republican. That justice will have to run for reelection next year – but not only will they have a year and half to establish a reputation, they will be listed on the ballot as a Justice of the Michigan Supreme Court. Their opponent will just be a name.

And we are conditioned from commercials to think the name brand is always better than Brand X. That’s why state Supreme Court justices very seldom lose.

There are a couple other peculiarities regarding the Michigan Supreme Court. Justice Young is leaving at least partly to make money. Supreme Court justices are paid a little less than $165,000 a year, which is less than many young lawyers make.

They haven’t had a raise in fifteen years. We also have age discrimination. U.S. Senator Elizabeth Warren clearly has a sharp legal mind; she was a professor at Harvard Law School. She could be appointed to the U.S. Supreme Court.

But she couldn’t run for the Michigan Supreme Court in 2020 because she’ll be 70 – and this state doesn’t allow anyone to be elected a judge after that date.

When Justice Young’s successor is chosen, it will mean a majority of the seven justices will have been first put there by Rick Snyder. The governor’s choices have generally been praised as jurists of integrity. But is having one politician pick judges the best way to do this?

Five years ago, Former Michigan Chief Justice Marilyn Kelly, a Democrat, a Republican Federal Appeals Judge and U.S. Supreme Court Justice Sandra Day O’Connor presided over a blue-ribbon task force which came up with a system to give any governor a choice of the best possible legal minds when vacancies occur.

Unfortunately, the politicians have shown no interest in giving that idea a chance.

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