Robinson won't run for MSC

Scratch Marietta Robinson as the Democrats' Michigan Supreme Court candidate.

That's the word from veteran government and politics reporter Tim Skubick on his blog and in a bylined report for the Michigan Information Research Service.

Robinson cited vote-siphoning concerns, now that the Libertarian Party has named Robert W. Roddis as its supreme court candidate. Skubick says "Robinson believes a chunk of her would-be support went to a minority party candidate" in the last election, which she lost to Justice Clifford Taylor, and feared a repeat this time around.

She's not a fan of the Reform Michigan Government Now ballot proposal, which was long-speculated to be the brainchild of the Michigan Democratic Party. That notion was confirmed last week when the Mackinac Center for Public Policy posted on its website a Democratic battle plan for the proposal. The Mackinac Center says the power point presentation was found on a union website.

Skubick reports that Robinson was worried, and rightly so, than any head-to-head campaigning with Taylor will be little noticed in the din that's about to be created by a Michigan Chamber of Commerce about-to-be-filed legal challenge to the proposal.

All well and good, but it strikes me that there may be another reason why Robinson has bowed out and others may think twice about throwing in: some of the groundwork Democratic Party Chair Mark Brewer has laid for the supreme court contest borders on a 21st Century version of the theater of the absurd.

Last year, when the Detroit Free Press reported that most of the appellate judiciary was driving around in state-issued vehicles, Taylor, along with the other judges, turned in the vehicles. Brewer snagged Taylor's car at a state auction. Since then, he's tried to turn it into an icon of Taylor's supposed self-interested feeding at the public trough.

Last week, Brewer called a press conference to celebrate the one-year anniversary of buying the car!

Brewer's anniversary "gift" to Taylor? This letter:

"Dear Cliff,

"Since I've been driving your former taxpayer-funded car for a year now, I thought it was only appropriate that we celebrate our first anniversary. I'm sure you are missing it, so I wanted to let you know I am taking good care of the car as I travel the state sharing your pro-insurance company record with the voters. In fact, I have more than doubled the mileage on the car since you reluctantly turned it in after the scandalous press stories about your abuses. The car has been a big hit at press events, and our local activists love to have their picture taken with the symbol of your abuse of the perks of your office!

"Since I'm not in the habit of giving my car presents, I think you should receive this gift celebrating our first year together. A first anniversary is traditionally celebrated with paper - a letter, a book, or some fancy stationary. For you, I have packaged up some of my favorite news articles that chronicle your corrupt attempts to protect your own pay and perks while Michigan citizens have struggled to pay their bills.

"I have to tell you, the car is great. I am sure you miss it, but with your $164,000 annual paycheck and Lucille's high paying job with Mike Cox, I am sure you have purchased something even more luxurious by now.

"Sincerely,

"Mark

"P.S. Please let the voters decide the RMGN ballot proposal - don't abuse your power yet again! Hope you enjoy our TV ad - it is running in your hometown!"

The TV ad Brewer refers to makes the stretchy argument that Taylor should decline to rule on any challenge of the ballot proposal because it contains a judicial pay-cut provision. See The Michigan Lawyer: MSC's Taylor target of new Democratic TV ad

None of this gives a Democratic high court candidate, whoever that might be, much to build on.

Brewer has said he's prepared to spend $20 million on this year's supreme court campaign.

Now he may have big trouble finding someone to spend it on.

MSC's Taylor target of new Democratic TV ad

Michigan Democratic Party Chair Mark Brewer, unfazed by his party's lack of a declared Michigan Supreme Court candidate for the November election, has rolled out a television ad aimed at achieving one of his stated goals for this election cycle: defeating Chief Justice Clifford Taylor.

The 30-second spot, "What Will Cliff Taylor Do?", urges Taylor not to block a ballot proposal that, among other things, cuts salaries, limits retirement benefits and requires financial disclosures for elected officials of all three branches of government, including the presumably self-interested chief justice.

"Special interests are willing to go all the way to the Michigan Supreme Court to block your right to vote for change," warns the ad's voice-over announcer.

"Justice Taylor should let the voters decide," she concludes.

Brewer is correctly anticipating legal challenges to the proposal, which amends the state constitution in dozens of ways and is being pushed by Reform Michigan Government Now! He's hoping to hit a public relations home run every time a judge rules against letting the proposal on the ballot.

He's touting the notion that there's an ethics problem for any judge who tries to block the proposal, which, it's been widely reported, Brewer has had a heavy hand in crafting.

But Brewer has a lot more on his mind than the situational ethics of those who might pass judgment on a plan that would let voters cut their pay.

The proposal contains the means for Brewer to accomplish his not-so-hidden agenda of shifting the high court's balance of power. As Detroit Free Press Deputy Editorial Page Editor Stephen Henderson astutely observed in last Sunday's editions, the proposal has "a kind of court-packing by reduction" feature.

If passed, the supreme court's bench would shrink from seven justices to five. The court's two most junior justices, Republican appointees Robert P. Young and Stephen J. Markman, would have to step down. That would leave the court with Taylor and Justice Maura Corrigan, who usually champion the Republican viewpoint. Justice Elizabeth A. Weaver has been in the Republicans' corner in the past. But, to their great annoyance, she has been a vocal maverick ever since the other court Republicans refused to back her for a second two-year term as chief justice. The Democrats would have two justices they can usually count on, Michael F. Cavanagh and Marilyn Kelly.

If the proposal reaches the high court, if Taylor votes with a majority to keep the proposal off the ballot, and if Brewer successfully pins the blame on Taylor (the television ad lays the groundwork for that), then, the thinking goes, the Democrats can cast Taylor as the villain and capture his seat on the court in November. This would leave Weaver as a swing vote to be wooed by both sides of a seven-justice court. It wouldn't be exactly the situation Brewer was looking for, but he'd be able to live with it.

And if the court unanimously rules against the proposal? This is not a good result for Brewer. Any criticism of Taylor can be applied with equal force to everyone on the court. But in similar situations in the past, Brewer has plowed right ahead. See, Case selection is important: Democratic Party chair slams chief justice for decisions joined by Dems, detractor", Michigan Lawyers Weekly, June 16, 2008.

If Taylor votes with a minority to keep the proposal off the ballot, Brewer gets a chance at a five-justice court and a solid three-Democrat majority. If the voters approve the proposal and reject Taylor in favor of a yet-to-be-named Democratic player, then Brewer will accomplish something he and his team have been dreaming about for years - a major philosophical change in the high court's makeup.

And he'll have done it by convincing voters to downsize the court with a designer amendment to the Michigan Constitution.

Despite what the ad might lead voters to believe, this is about a lot more than just pay cuts.

Trial court elections: Whole lotta shakin' goin' on

Ann Arbor attorney Doug Shapiro is all dressed up for the November circuit court election in Washtenaw County but says he doesn't want to go anywhere, at least not to the bench.

Earlier this year, it looked to be a no-challenger contest for incumbent judges David S. Swartz and Donald E. Shelton. Then, word got out that Shelton was on the short list of candidates for the vacant presidency of Eastern Michigan University. At the time, Shapiro said, according to an Ann Arbor News report, that "he would not enter the race until and unless Shelton got the EMU job."

But shortly thereafter, he filed candidacy petitions with almost double the signatures needed to get on the ballot. Time went by, along with the May 2 deadline for withdrawing from the race. Several days later, EMU chose Susan Martin as its new president.

So, now it's a three-way race for two seats on the Washtenaw circuit bench. But Shapiro hasn't raised any cash for his campaign. He says he's not asking people to vote for him because there's no opening "and we have two good judges."

Despite that statement, the Ann Arbor News says Shapiro is interested "in appearing in voters' guides and making himself available for other pre-election news-gathering efforts."

Shapiro says it's all a dress rehearsal for when there is an opening on the bench.

Over in Ingham County, there's a decidedly different situation in November. Voters will choose among six contenders to fill three seats on the circuit bench: incumbent judges William Edward Collette and Janelle A. Lawless; Rosemarie Elizabeth Aquilina, who's looking to step up from her job as chief judge of the 55th District Court; Hugh B. Clarke, Jr.; Frank Harrison Reynolds and Beverley Nettles-Nickerson.

Nettles-Nickerson would have been running as an incumbent judge but the Michigan Supreme Court removed her from office last month for several instances of misconduct. At the time, Nettles-Nickerson, who remains on the ballot, said that the voters would have the final word on the matter.

The Judicial Tenure Commission, acutely aware of that possibility, asked that she be removed from office and conditionally suspended without pay for six years in the event that she is re-elected in November. The supreme court removed her from office and made it clear that she was not an "incumbent" in the November election, but declined to impose the conditional suspension.

In Kent County, the Grand Rapids Press is reporting that the JTC is taking a similar stance in the case of Rockford District Court Judge Steven Servaas, who is running unopposed for re-election in November. The JTC has charged Servaas with living outside of his district, drawing two sexually related doodles and making a comment to a court worker that she said was sexual harassment. The JTC wants the Michigan Supreme Court to strike Servaas from the ballot. If that's not possible, the JTC wants Servaas removed from office at the beginning of his new term, Jan. 1, 2009.

A JTC hearing on the charges against Servaas is scheduled for July 14.

Meanwhile, over in the 23rd Circuit Court, which covers Arenac, Iosco, Alcona and Oscoda counties, incumbent judges Ronald Bergeron and William Myles are in a heated court battle with Tawas attorney Christopher Martin to again get him removed from the judicial ballot.

The Bay City Times reports that the Secretary of State removed Martin after reviewing Bergeron's and Myles' claims that Martin filed too few signatures to appear on the ballot. An Ingham County Circuit Court judge overruled the SOS and put Martin back on. The incumbents have filled a 200-page brief with the Michigan Court of Appeals, seeking to once again bounce him from the ballot.

No word on when the COA might issue a ruling.

Weaver v. Taylor in November MSC contest? Nutty speculation points to painful truth

Picture this: Michigan Supreme Court Justice Elizabeth Weaver resigns from the court. Weaver then announces her candidacy to regain a seat on the court by butting heads with Chief Justice Clifford Taylor in the November election.

This "would have been one heck of a battle between two jurists who are not, shall we say, the best of friends," writes veteran Capitol newshound and pundit Tim Skubick in today's Lansing State Journal.

The unattributed scenario Skubick offers is, of course, punditry fever-dreaming at its best. And, Skubick says, when Weaver was asked about it, she said the thought never crossed her mind and labeled it as "laughable."

Meanwhile, Michigan Democratic Party Chair Mark Brewer and his minions continue the hunt for a Democratic candidate to face Taylor this fall.

A couple of weeks ago, Brewer appeared on Skubick's public television "Off the Record" program to face an all-star reporters' panel: Bill Ballenger of Inside Michigan Politics; Kathy Barks Hoffman of The Associated Press and Charlie Cain of The Detroit News. (Broadcast available here. Brewer's segment starts about 15 minutes into the program).

Ballenger put Brewer right on the hot seat by declaring that Brewer's biggest problem was that his party didn't have a candidate, that the only two folks who could beat Taylor, Governor Jennifer Granholm and former Governor Jim Blanchard, weren't running, and, as a result, Brewer was reduced to the strategy of painting Taylor as a villain.

It was almost painful to watch Brewer meekly respond that he was "very close" to naming a candidate. Since then, Brewer says a candidate has been selected, he's just not saying who, just yet.

Skubick says Brewer's candidate could be

"Marietta Robinson, a private lawyer from Oakland County who took on Taylor once before and lost. She has a long list of demands for her candidacy, but as one insider put it, 'She would give Cliff heartburn.' The governor's office would be comfortable with Robinson, too."

We'll see.

If this year's supreme court race were a sporting event, "Dandy" Don Meredith of Monday Night Football fame might describe it like this: "Time ticking away late in the fourth quarter. Democrats down by six with the ball on their own 20. Third down and a mile to go."

It's time to snap the ball, Mr. Brewer.

Judicial election reform buzz getting louder

Proponents of the notion that the way we select and elect our judges in Michigan is broken and needs fixing have been creating a lot of buzz recently.

Yesterday, State Rep. Lamar Lemmons, Jr. (D-2nd District) introduced a state constitutional amendment that would level the playing field by eliminating the now-constitutionally mandated incumbency designation on judicial ballots. Lemmons' proposal has been sent to the House Judiciary Committee.

The value of the incumbency designation should not be underestimated.

"In the last 20 years, at least 95 percent of all judges in Michigan seeking re-election have been returned to office," says Bill Ballenger, the venerable publisher of Inside Michigan Politics. Ballenger has kept tabs on such things in his newsletter since 1987.

Earlier this week, the Midwest Democracy Network rolled out an online book, "Democratic Renewal - A Call to Action from America's Heartland". The book assesses the scene in the Great Lakes states, and has plenty of observations about perceived wrongs and how to right them. Rich Johnson, the Executive Director of the Michigan Campaign Finance Network, wrote the book's Michigan section. Among Johnson's proposals:

• Ethics law should be extended to cover the legislative and judicial branches of government.
  
  
• Michigan should establish a commission to evaluate the merits of a system of voluntary full public funding for all State election campaigns.
  
  
• The Michigan Supreme Court should develop standards for recusal in cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices.
  

A previous blog noted Michigan Supreme Court Justice Elizabeth Weaver's reform plan, which she floated on her private web site over the year-end holidays. Weaver's proposals have received mixed reviews in the Kalamazoo Gazette and, more recently, in the Grand Rapids Press.

COA's Bandstra announces re-election bid

Michigan Court of Appeals Judge Richard A. Bandstra says he'll be seeking re-election to another six-year term on the court in November.

Bandstra made his announcement a few minutes ago via a press release e-mailed from his g-mail account.

Bandstra was elected to the COA bench in 1994 and served as chief judge from 1998-2001. He's a former state representative with a law degree from the University of Chicago.

What's on Bandstra's mind heading into the election season? Money and productivity:

[O]ur Court faces large challenges in the years ahead as we have to maintain our productivity and the quality of our work in the face of budget cutbacks. As a former Chief Judge, I hope that I will be able to assist recently appointed Chief Judge Henry Saad in coming up with creative ways to meet those challenges.

Bandstra will be seeking re-election in the COA's Third District, which includes the following counties: Allegan, Barry, Berrien, Branch, Cass, Eaton, Ionia, Jackson, Kalamazoo, Kent, Muskegon, Newaygo, Ottawa, St.Joseph, Van Buren and Washtenaw.

COA tackles a flawed presidential primary law

The Michigan Court of Appeals today will try to straighten out the legislatively created mess of Michigan's perhaps-Jan. 15 presidential primary.

Ingham County Circuit Court Judge William Collette struck down the primary law last week, ruling that it gives the Michigan Democratic and Republican parties an unconstitutional freebee. The political operatives get exclusive access to information about those who would participate in the primary, and, don't have to pay one red cent for it.

In an order released yesterday, the COA has ordered all interested parties to file briefs by 10:00 a.m. this morning. Oral arguments are scheduled for 1:30 p.m. before Chief Judge William Whitbeck, and Judges Patrick Meter and Donald Owens in the Hall of Justice in Lansing.

The court also has ordered Secretary of State Terry Lynn Land to file and serve affidavits by 5 p.m. today on participating party organizations - Democratic Chair Mark Brewer and Michigan Republican Chair Saul Anuzis - that describe whether their respective parties will use some other method than the primary results to select delegates for their national conventions.

If neither party will use the primary results, under MCL 168.613a, the primary must be canceled. Interestingly, under the statute, the Secretary of State, by 4 p.m. Nov. 15

shall determine, based upon the information provided by the participating political parties under this subsection, whether the participating political parties in this state will be using a method other than the results of the January 15, 2008 presidential primary to select delegates to their respective national conventions to nominate a candidate for president of the United States in 2008.

The Michigan Information & Research Service is reporting that Democratic Chair Mark Brewer yesterday, as the statute requires, told the Secretary of State his party will use the primary results if Judge Collette's ruling is overturned and the Republicans agree to use the primary results.

This is a sorry state of affairs, for which the blame should fall squarely on the shoulders of the partisan and elected nincompoops who brought the flawed primary law into being with a built-in political boondoggle.

Voter photo ID law gets first test next Tuesday

Michigan's not-so-new law requiring voters to show photo identification gets its first test this Tuesday, Nov. 6, in local elections around the state.

The long, conflicting road to a photo ID law The law was one of several 1996 amendments to the Michigan Election Law. Before the law took effect, then-Attorney General Frank Kelly issued an opinion, in which he said the photo ID requirement violated the Equal Protection Clause. The law lay dormant for eight years. In 2005, it was revived, unchanged, by other election law amendments, effective Jan. 1, 2007. With Frank Kelly's opinion lurking in the background, the House asked the Michigan Supreme Court to answer this question in an advisory opinion: "Do the photo identification requirements contained in 2005 PA 71 violate either the Michigan Constitution or the United States Constitution?" In an order issued in April 2006, on a 5-2 vote, the question the court chose to answer was, "Do the photo identification requirements of Section 523 of 2005 PA 71, MCL 168.523, on their face, violate either the Michigan Constitution or the United States Constitution?" Justice Marilyn Kelly dissented for two reasons. First, the House framed the question too broadly. Second, the question the majority agreed to answer was not the question asked. Justice Michael Cavanagh also dissented. The court issued a 5-2 opinion, which held "that the photo identification requirement contained in the statute is facially constitutional under the balancing test articulated by the United States Supreme Court in Burdick v Takushi." Information from "Michigan's Photo ID Requirement for Voters"

If you don't have such ID, or you do and you left it at home, you can still get a ballot but you must sign an affidavit to that effect.

There's a stiff penalty for lying about the status of your ID, or the lack of one: you could be convicted of perjury, pay a fine of up to $1,000 or spend up to five years in prison, or both.

They're not fooling around.

What's acceptable photo ID? The Secretary of State's office has provided a helpful list.

There's been much speculation about what effect the law will have on voter participation and whether it prevent the evil it was designed to cure - election fraud.

Here's the take of Suzanne Lowe, Michigan Senate Bill Analysis Coordinator, in her article, "Michigan's Photo ID Requirement for Voters." It's in the latest issue of "State Notes: Topics of Legislative Interest."

According to the Secretary of State's office, approximately 370,000 registered voters in Michigan (or about 5.0 percent of all registered voters in the State) do not have either a driver license or an official State identification card. There are no data on the number of voters who also do not have any of the other types of photo ID that the Secretary of State considers acceptable. Of the voters who do have photo ID, there is no way of knowing how many will not bring it to the polls because they forget to or do not know about the law's requirement. It also is not possible to predict how many voters who do not have photo ID, or have it but do not bring it to the polls, will be unable to sign an affidavit because they cannot read or understand the document, or will be unwilling to sign one because they feel intimidated or embarrassed or simply do not want to take the time.

Whether the photo ID requirement actually represents a "barrier to the ballot box," as critics contend, may be known only after the requirement is implemented, and perhaps only after it is enforced during the November 2008 general election. Whether the requirement serves to prevent voter fraud may never be know. Although there have been convictions in Michigan for illegal activity during voter registration drives, there does not appear to be any evidence of the type of in-person polling place voter impersonation that the photo ID requirement might deter. As some contend, this may be because of the difficulty of detecting such activity and catching the offenders. On the other hand, to the extent that such fraud does occur, it is questionable whether the penalty for signing a false affidavit will deter someone who is willing to commit a felony by voting under a false name or impersonating another elector.

Campaign cash and recusal: a lost cause in the MSC?

In an earlier post, Michigan Lawyer: Justices, money, elections and recusal, we took a look at two Michigan Campaign Finance Network proposals.

One recommended "voluntary full public funding" of Michigan Supreme Court elections.

The other urged the MSC to "develop standards for recusal for cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices."

Recusal: a heated debate in the MSC Over in the Hall of Justice, the topic of recusal has generated ferocious debate among the justices. The arguments have focused, for the most part, on the court's practice of letting justices who are the subject of a recusal motion decide the motion themselves and whether the justices are required to provide reasons for a decision to either remain on the case or to back off. Historically, the justices have remained silent about their reasons. But since 2003, Justice Elizabeth A. Weaver has become insistent that reasons be provided. See, e.g. "If it ain't broke... MSC declares procedures for handling recusal motions don't need fixing" and "Is it time for MSC to reform how it handles recusal motions? Experts weigh in on impact of high court's recent ruling". The latest salvos are in two of the high court's orders, Jordan v. Dep't of Labor & Economic Growth, and Fieger v. Cox.

The issue of recusal standards addressing justices and political financial matters is a subset of the larger issue of the high court's recusal procedures in general. See the sidebar on the right.

The Legislature will need to hash out any public funding proposal. Recusal standards based on campaign contributions are within the court's domain, but with the court's current makeup, this is not likely to happen anytime soon.

Here's why.

In Adair v. State of Mich., the plaintiffs asked Chief Justice Clifford W. Taylor and Justice Stephen J. Markman to recuse themselves because both justices' wives worked for the office of the Attorney General, who was defending the case.

The motion produced a memorable response, in which every justice weighed in on the topic of recusal. And, Justices Taylor and Markman, previously staunch defenders of the court's "no reasons" tradition, broke that tradition when they filed an 18-page statement explaining why they were denying the motion.

They responded to every argument the plaintiffs made, and then gratuitously addressed a topic the plaintiffs hadn't mentioned — campaign contributions.

They started with some undisputable givens: every “justice in Michigan in modern times” has received campaign contributions; under the state constitution, justices must compete in elections; it takes bushel baskets of money to run a campaign and the money has to come from somewhere. Then they said this:

Of considerable relevance to the subject of campaign contributions as a basis for recusal is the Legislature’s establishment of limits on individual and political action committee contributions to Michigan judicial candidates. MCL 169.252 and 169.269. Such limits must be understood as clearly reflecting the Legislature’s, and the people’s, understanding that contributions in these amounts will not supply a basis for disqualification. That is, lawful contributions made within these limits, lawfully reported and lawfully disclosed, cannot fairly constitute a basis for judicial disqualification. Otherwise, these statutes, just as MCR 2.003 and Canon 3(C), would be little more than cleverly devised snares to be exploited by those wishing to undermine individual judges. A judge who plays by the rules should not be required to recuse himself or herself on the basis of such conduct. Thus, we assume, as have all the justices before us, that the Legislature decided that lawful campaign contributions would not give rise to a basis for judicial recusal.

Those words were written Jan. 31, 2006.

In statements released the same day, both Justices Robert Young and Maura Corrigan indicated support for the joint statement of Justices Taylor and Markman.

Justice Young: "I support their joint statement and fully concur in the legal analysis of the ethical questions presented in it."

Justice Corrigan: "I agree with their legal analysis of the ethical issues raised."

There's no reason to think that any of them see things differently now.

On a seven-justice court, four votes are needed to make things happen.

And that’s why the MCFN’s suggestion that the court develop recusal standards addressing the issue of political money will remain just that, a suggestion, as far as the Michigan Supreme Court is concerned.

Judges: Is there a better way to pick them?

The November 2008 election for the Michigan Supreme Court, pitting the presumed Republican candidate, incumbent Chief Justice Clifford Taylor, against a yet-to-be-named Democrat, is shaping up to be a spendfest that may rival the 2000 contest, in which three seats were open on the high court.

A couple of weeks ago, Michigan Supreme Court Justice Robert Young told the Republican faithful at a Mackinac Island conference that it might take $20 million to keep the chief in office. In response, Democratic State Party Chair Mark Brewer promised that his party will do whatever it takes to make sure that doesn't happen. See, Michigan Lawyer: The public should care

Whether the 2008 campaign ads will be just as silly and mind-numbing as in years past - "soft on crime," "anti-family," "lacks experience," "Markman and Taylor and Young, oh my!" (chanted to a Wizard-of-Oz cadence by dancing, animated trees) - remains to be seen.

Reform advocates say the way to end all of this nonsense, and to obtain a judiciary less beholden to special interests, is to switch to an appointment process. At the heart of all such plans is the idea that those seeking a seat on the bench would go through a vetting and winnowing process. Survivors then get the appointments.

This is not a new thought. After the 2000 election, then-Chief Justice Elizabeth Weaver championed an appointment plan featuring non-renewable 14-year terms. See, "CJ Weaver Calls For New Method To Pick Justices" Former State Sen. Ken Sikkema floated the Missouri Plan: appointments followed by retention elections. See, "Wanted: Judicial Selection Changes"

As far back as 1994, responding to news stories of judicial smear campaigns, the late Justice James H. Brickley called for adoption of the Missouri Plan. See, "Appointing judges: A solution to 'low road' campaign tactics"

Now comes a recent study from the University of Chicago Law School that tests the notion that appointed judges are "better" than elected judges and concludes that either way may not make much of a difference.

In "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary," by Stephen J. Choi, G. Mitu Gulati and Eric A. Posner, the authors measured judicial independence, productivity and "opinion-quality" to determine whether elected or appointed judges are "better."

The authors say that underlying all the clamor for doing away with judicial elections is "the conventional wisdom among lawyers and scholars that judges should be appointed by elected officials or independent commissions .... The conventional wisdom reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office."

But the authors note that when "judges use campaign contributions to finance simple-minded television commercials, conflict of interest is layered on public confusion."

Yet, "[i]n a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common."

The paper's abstract concludes that the "empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals)."

The public should care

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.