Choose Your Judges

Soap Opera on Michigan Supreme Court

February 20th, 2013

On July 31, 2006, Michigan lawyers perusing the most recent decisions of their Supreme Court came across this extraordinary passage in a concurring opinion:

“With her dissent, [Michigan Supreme Court] Justice [Elizabeth] Weaver completes a transformation begun five years ago, when all six of her colleagues voted not to renew her tenure as Chief Justice of this Court. This transformation is based neither on principle nor on ‘independent’ views, but is rooted in personal resentment. This transformation culminates today in irresponsible and false charges that four of her colleagues are ‘bias[ed] and prejudice[d]’ against attorney Geoffrey Fieger and therefore must be disqualified from hearing his cases…”

This concurrence was written by the Chief Justice of the Court and joined by three other Justices. It marked yet another round of incivility and partisan bickering that has torn at the Michigan Supreme Court for the past decade. At the time, the Court was in theory safely in conservative hands, as it consisted of five Republicans and two Democrats. But Justice Weaver, who was originally elected to the Court as a Republican in 1994, had slowly but surely been drifting to the left, until by 2006 she would reliably vote with the two Democrats on the Court. It was this leftward drift that inspired the unprecedented attack excerpted above, signed by the four “true” Republicans on the Court, who saw Justice Weaver’s shifting judicial philosophy as nothing short of treason.

Democrats, sensing that they now effectively had three seats on the seven-member Court, went all out in 2008 to defeat Republican Chief Justice Clifford Taylor. The challenge was significant—no sitting Michigan Chief Justice had ever lost an election. But the Democrats poured millions of dollars into the race. Not to be outdone, the Republicans also spent millions—resulting in a record for campaign spending in a judicial election: $5.9 million for one seat. And the race got nasty. Democratic challenger Diane Hathaway ran television ads showing Chief Justice Taylor asleep on the bench (in a “dramatization”), while Taylor depicted Hathaway as lenient on terrorists and sexual predators. In the end, Hathaway defeated Taylor, giving the Democrats another seat on the bench. The Court immediately voted in Hathaway as the new Chief Justice—with the three Democrats and Justice Weaver providing the necessary four votes. The Democrats had now effectively taken over the Court.

Justice Weaver’s betrayal was now complete. In May 12, 2010, three fellow Republicans announced that they had sent a letter to the Judicial Tenure Commission of Michigan, which reviews ethical violations by judges, alleging that Weaver disclosed the court’s internal deliberations with an attorney involved in a case before the court. Weaver shot back immediately, issuing an extraordinary press release in which she stated that the charges were politically motivated and that the other Republicans on the Court wanted to turn the Court into a “secret club” and “suppress her dissents.”

Weaver was up for re-election in 2010, and—unsurprisingly—she decided not to run, since she was unlikely to get support from her party. However, Weaver won a final victory over her Republican opponents on the bench: rather than serve out the final months of her term, she decided to resign in August, allowing Democratic Governor Jennifer Granholm to appoint Democrat Alton Davis to replace her.

There are some reports that Weaver engaged in “secret negotiations” with the Governor, agreeing to resign her seat early and give the Governor the power to make the appointment only if the Governor agreed to appoint a new Justice from Weaver’s home region of Northern Michigan (which she in fact did). Whether this is true or not, Weaver’s decision to resign early not only gave the Democrats an actual (as opposed to a de facto) majority on the Court, it also allowed the new Justice Davis to run as an incumbent in November.

Now we are two weeks away from another pivotal election. Democrat Alton Davis, is running to keep his seat as a newly-minted incumbent. So is incumbent Robert Young, one of the Republicans who allegedly drove Weaver from the bench—and one of its most conservative members. Thus, the 4-3 Democratic majority is in danger—if voters keep Young but vote Davis off the bench, they will give the Republicans back their majority. Of course, Michigan voters could also keep the status quo or—if they vote Young off the bench but keep Davis—hand the Democrats a 5-2 supermajority.

Republican Mary Beth Kelly is running against Justice Davis. Meanwhile, Democrat Denise Langford-Morris is running against Justice Young. Both of the challengers are current appellate court justices; both seem perfectly well-qualified for the Court. But in this bitterly partisan atmosphere, it is unlikely that the qualifications of any of the candidates are going to be much of a factor in deciding the composition of the 2011 Michigan Supreme Court.

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