Bipartisan Recommendations for Improving Michigan’s Selection of Supreme Court Justices

By Michigan Supreme Court Justice Marilyn Kelly and retired Sixth Circuit Judge James L. Ryan. Justice Kelly will participate in a panel on judicial campaigns and public confidence in the courts during the American Constitution Society’s National Convention in June.

Since the turn of the century, Michigan has gained a reputation for Supreme Court election campaigns that are among the most expensive, least transparent and most partisan in the country. Our campaign ads have been among the most offensive. That is why we convened a bipartisan task force of prominent Michiganders to study how Supreme Court justices are selected across the nation and recommended improvements to Michigan’s Supreme Court selection process.

The 2010 candidates for the Michigan Supreme Court raised a total of $2.6 million. The political parties and state-based interest groups reported spending another $2.5 million. But data collected from the public files of state television broadcasters and cable systems showed that an additional $6.3 million was spent by the political parties and interest groups. Michigan law does not require this candidate-focused “issue” advertising to be reported in the state campaign finance disclosure system.

This was not the first time that the majority of money spent in a Michigan Supreme Court campaign was undisclosed to the public. For the elections from 2000 through 2010, $21.5 million was reported and $20.8 million was paid for undisclosed television advertising.

This situation led our task force to its first recommendation: All money spent to characterize candidates for the Michigan Supreme Court should be reported and ascribed to its sources, not just the committee whose name appears on the disclaimer of an advertisement.

This should be fundamental information in all elections, so voters can make informed decisions based on knowledge of who is supporting the candidates. It is even more important for judicial elections. The U.S. Supreme Court has established that a judge may be required to step down from hearing a case involving a major campaign supporter, because to do otherwise could deprive the supporter’s opponent in litigation of his or her due process right to an impartial court hearing.

The Michigan Constitution of 1963 specifies that Supreme Court justices shall be selected by nonpartisan elections. Candidates for the nonpartisan November Supreme Court elections are nominated at the conventions of the political parties. Committed Republicans, Democrats, Libertarians or Greens nominate candidates most suitable to them; then the candidates are presented to voters as nonpartisans.

The contradiction in this led our task force to its second major recommendation: Candidates for the general election should be selected in open, non-partisan primary elections, just like every other judicial candidate in Michigan. This does not mean that political parties couldn’t be involved in the electoral process. It does mean that they would not have the monopoly on nominating candidates that they hold today.

Our task force observed that Supreme Court candidates typically draw 75 percent, or fewer, of the number of votes cast for the top of the ticket in any election. We believe that more – and more reliable – voter information could increase voter participation in choosing Supreme Court justices.

Toward this end, the task force recommends the compilation of an official judicial voter guide about the candidates and the formation of a campaign oversight committee. Best formed by civic institutions with an interest in truth and ethics in campaigning, it could comment on the veracity of campaign claims, provide a sense of legal context when specious claims are made, and provide notice if there are deviations from the canons of judicial conduct in a campaign.

Many members of the task force believe that a system where a bipartisan nominating commission screens candidates for gubernatorial appointment would be a better system for protecting the independence of the Michigan Supreme Court than competitive elections. However, because that was not a consensus position it did not rise to the level of a recommendation of the task force.

The task force does recommend the appointment of a bipartisan nominating commission, comprising lawyers and non-lawyers, to publicly screen candidates to fill terms that have been vacated by resignation or death, and make advisory recommendations to the governor. This would bring transparency to gubernatorial appointments that we currently do not have. This matters because, since the adoption of our current Constitution, nearly as many justices first reached the Supreme Court by appointment as by election.

Members of the Judicial Selection Task Force brought many different perspectives to our shared effort. The group includes liberals, conservatives and political independents; lawyers and non-lawyers; business people and experienced campaigners.  Despite our differences, we agreed wholeheartedly about this:  We must improve our process for selecting justices of the Michigan Supreme Court. Our recommendations can do just that.