Oakland County Probate Judge Eugene Arthur Moore took to the pages of the Saginaw News a couple of weeks ago with a guest column entitled, “Change rules to raise confidence in court.”
He wrote about the need to ensure the public’s faith in the legal system. Two reforms, according to Judge Moore, will help accomplish this.
First, the Michigan Supreme Court needs to formally adopt rules “that give litigants and their attorneys a clear basis for knowing when a Supreme Court justice should be disqualified from hearing a case.”
Second, “the Supreme Court must adopt a rule that does not restrict what justices may write in their opinions.”
We’ve previously written about both issues. See, “If it ain’t broke … MSC declares procedures for handling recusal motions don’t need fixing,”
and, “Supreme Court confidential … MSC’s codification of unwritten ‘deliberative privilege’ draws on historical practices, raises enforcement questions.”
These are important issues, to be sure. But frankly, it was Judge Moore’s opening observation that drew my attention.
“[W]e need to make sure we have fair and impartial judges. The public doesn’t care if we were appointed by a Republican or Democratic governor, whether we are members of the Federalist Society or The American Constitution Society, whether we are a ‘liberal’ or ‘conservative.'”
Yet, in the high-stakes game of selecting justices for the Michigan Supreme Court, either by gubernatorial appointment or election, it is precisely these considerations that come into play.
It’s hard to ignore them, given that MSC candidates are nominated by political parties but later presented to the public on a nonpartisan ballot.
Some folks need to have the public to care very much, otherwise millions of campaign dollars are being ill-spent to influence choices.
Consider a recent report from our good friends at the Michigan Information & Research Service (MIRS).
“Keeping in place ‘the nation’s most conservative Supreme Court’ after 2008 will be an expensive affair and it can be made easier if those attending the Mackinac Republican Leadership Conference open up their wallets and Lincoln Day dinners for incumbent Chief Justice Clifford TAYLOR, said Justice Robert YOUNG on Saturday morning [September 22],” according to the MIRS report.
“The Supreme Court is holding a ‘razor-thin’ 4-3 conservative majority on the state’s high bench,” Young said, conveniently roping in fellow Republican-nominated and independent-minded Elizabeth WEAVER with the rest of the ‘liberal, law-writing judges.’
“Like the six prior Supreme Court elections before it, Taylor’s 2008 re-election to the court ‘Ronald REAGAN always wanted’ will be hotly contested by ‘the usual suspects’ in an estimated $20 million campaign,” MIRS reported.
Now consider Michigan Democratic Party Chair Mark Brewer’s response to Young’s remarks.
“Taylor will lose a $20 million race because we will do whatever it takes to beat him,” Brewer said. “From abusing perks to controversial decisions to Supreme Court infighting, Cliff Taylor’s term as Chief Justice has made the people of Michigan hold their heads in shame. Even $20 million won’t dig him out of the hole he is in.”
The Democrats are currently hunkered down, feverishly calculating who to spend their $20 million on in an effort to unseat Justice Taylor.
Both political parties are paying an awful lot of attention to something that, if Judge Moore is correct, the public doesn’t care about.
What does the public really want?
“What they want,” according to Judge Moore, “is for us, as judges, to listen to the facts and decide the case based on the law. Our bias, prejudice, judicial philosophy or political beliefs should be left at home.”
But all of that is baggage that you’re expected to pack and take with you on your way to the bench, especially when someone else has bought you a first-class ticket for the trip.
Maybe Judge Moore is right. Maybe the public doesn’t care.
But if the public doesn’t care, there are at least 20 million reasons why they should.
The Michigan Lawyer 