Justice: Work to improve judicial selection process

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By Robert M. Gubbins
Legal News

“If asked to describe what they do, judges will invariably say that they apply the law and they call balls and strikes,” said Michigan Supreme Court Justice Bridget Mary McCormack in a speech at the Women Lawyers Association of Mid-Michigan Annual Meeting held recently in Lansing.

“No matter how unpopular the result, that is their constitutional duty and that is what they do, day to day. Politics and personal view are not relevant to judicial function. This view is called legalism.”

The opposing view of judge’s decision-making, she noted, is that judges are political actors and, “at the end of the day, their ideological convictions have a role to play in their decisions.” This view is called realism.

What role politics has to play is an interesting question about which there are a lot of views, she added, but not one about which there is a lot of data.

Recently, however, Richard Posner, a judge and an academic, completed a book that included a review of a study of federal district  courts, and judicial decision-making. 

McComack said the results show that the lower the federal court, “the less likely politics is to play any role in the judge’s decision making.”

Turning to state court judges, who are elected as opposed to federal judges who are appointed for life, the question of the role of the election process and its effect on the public’s confidence in judicial decision-making has not been clearly defined. 

A great deal of money is spent on judicial campaigns where the candidates, unlike presidential candidates, are relatively unknown.

In the course of the most recent Michigan Supreme Court election in November, 2012, for example, McCormack said, “$18.5 million dollars were spent in about 12 weeks.”

The candidates for the bench spent only $3.5 million of that total. The rest of the spending was done by “groups other than candidates, primarily the major parties on issue advocacy as opposed to express advocacy.” 

Issue advertising can’t use words such as “vote for or vote against,” but can say, for example, “Bridget McCormack loves babies.” Most importantly, issue advocacy is not subject to campaign finance reporting.

In the latest Supreme Court election, the bulk of the campaigning was financed anonymously and McCormack argued that such ads are more effective in judicial elections where the public doesn’t know the justices and are, therefore, more influenced by the issue ads.

McCormack said she believes a system of electing judges undermines the public’s confidence in the justice system. However, the question of which system, appointment or election, creates the most diversity or is a better method, is one that has not been answered clearly. Studies have come down on both sides.

“I apologize for not having any answers,” she concluded, “but urge this group to think about the question and take an active role in shaping how we can improve our process of selecting judges in the future.“

McCormack, who was elected to the Supreme Court in November 2012, was previously a law professor and associate dean at the University of Michigan Law School. During her time at the Law School, she helped create new clinics including a Domestic Violence Clinic, a Pediatric Health Advocacy clinic and co-founded the Innocence Clinic.
 

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