Former Supreme Court Justice calls for ending high court judicial elections

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O'Connor keynotes forum on judicial selection at WSU

By Jo Mathis

Legal News

Sandra Day O'Connor told a sold-out crowd at Wayne State University Law School recently that Michigan would do well to appoint judges to its Supreme Court rather than elect them.

Speaking at a spirited five-hour forum sponsored by the Michigan Judicial Selection Task Force, the retired United States Supreme Court justice noted that she was both appointed and elected as judge during her long career, and that both methods can lead to great candidates.

But she said the framers of the Constitution required appointment, not election of federal judges.

Many Supreme Court decisions were unpopular at the time -- including Brown v. Board of Education, she said. O'Connor said she'd be surprised if such decisions could have been made if judges were popularly elected.

She said that in the past 10 years, Michigan has been the sixth highest spender among the 22 states that elect their Supreme Court Justices.

In 2010, she said, it was the most expensive judicial election state, as candidates and supporters spent more than $11 million for two seats.

The health of the entire legal system depends on a ''competent bunch of independent judges,'' she said.

Most Americans believe that campaign contributions make judges biased, she said.

''The only constituency judges should have is the law itself,'' said O'Connor. ''Cash doesn't belong in the courtroom.''

The event, which explored different approaches to selecting Michigan Supreme Court judges, was part of the Task Force's study of methods of selection of Supreme Court justices in the 50 states, and evaluation of Michigan's system of selecting supreme court justices.

The state's process involves nomination at a political party convention ending with a general election.

Justice O'Connor supports Arizona's system of selection for supreme court justices, where a bipartisan nominating committee recommends a pool of qualified candidates from which the governor appoints justices to fill vacancies.

Former Michigan Chief Justice Clifford W. Taylor spoke in defense of Michigan's practice of an elected supreme court.

He said the current system is more than 100 years old, and while not perfect, is the option least compromised by potential problems.

Taylor, who lost his 2008 bid for re-election, said he's concerned, however, about campaign finance accountability and mud-slinging campaigns.

''The kinds of campaigns that have been run by the left in this state for the past 15 years have been so disreputable and so slanderous, that I fear that capable and thoughtful lawyers will be reluctant to subject themselves to this arena,'' said Taylor, noting that none of the ''vile'' things said about him during three campaigns were true.

He said members of the bar should speak up for the truth, and chastise and shun those who spread lies.

Tuesday's speakers, which included Mark Brewer, chairman of the Michigan Democratic Party, and Robert LaBrant, general counsel of the Michigan Chamber of Commerce, represented opposing perspectives.

''It's my belief that despite the fact that voters know very little about justices, they still want to vote for them,'' said LaBrant.

''So good luck getting voters to amend the constitution to change the judicial selection process from election to appointment.''

Brewer favors a constitutional amendment via petition drive to change the current system, where he said the outcome of a case is predictable by knowing the names of the justices overseeing it.

The present system, he said, is a ''convoluted political compromise'' in which about half of all judges reach the bench by appointment and half, by election.

Michigan's judicial elections are at the bottom of the ballot, he said.

Because Michigan has one of the longest ballots in the country, many people don't even reach the names of the candidates, he said, noting that there's inadequate information about the candidates if they do vote for them.

Okemos attorney James White said he was eager to attend the forum because he often argues before the Michigan Supreme Court, and has a vested interest in the selection process.

''I'm not against the elected judges per se, but I think there should be some kind of procedure to narrow down who we vote for,'' he said.

''The way it's set up now, political parties nominate people to run for the non-partisan Supreme Court. It's ridiculous!''

White said he's argued before both conservative and liberal judges, and until recently always felt they carefully considered his legal points.

''But now, it's almost preordained how the case is going to come out,'' he said.

White said he hopes the task force will come up with a reasonable alternative.

Justice O'Connor agreed to serve as honorary co-chair of the task force when it was formed in December because she said judicial independence is critical to our system of government.

''There has to be one safe place, a place where being right is more important than being popular, where fairness trumps strength,'' she said in a statement at the time.

''In our country, that place is the courtroom. But that is true only so long as we keep political influences and cash out of the courtroom.''

The forum was chaired by Michigan Supreme Court Justice Marilyn Kelly and Judge James L. Ryan of the U.S. Court of Appeals for the Sixth Circuit.

Published: Mon, Jul 4, 2011

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