A panel of jurists that includes a Michigan Supreme Court justice, a U.S. 6th Circuit Court of Appeals judge, and several others has released a set of recommended changes in the Supreme Court justice election system. The proposals represent sound, reasonable, and necessary changes that would make the justice election process more transparent and logical. Our hope is that, despite this being an election year, state lawmakers and the governor give the recommendations honest consideration before taking action to move toward implementing the changes.
Supreme Court Justice Marilyn Kelly, a Democrat, and Republican 6th Circuit Court of Appeals Judge James L. Ryan helmed the Michigan Judicial Selection Task Force, a 24-member group established in late 2010 that recently unveiled a slew of recommended changes in the Supreme Court election system, including the full disclosure of Supreme Court campaign advertisement funding; elimination of the partisan nomination process and implementation of one akin to that which exists for the non-partisan election system; and a state constitutional amendment eliminating what the panel calls the “arbitrary” prohibition on appointing or electing a judge 70-years-old or older.
The task force has also recommended creation of an advisory commission to screen candidates for appointment to vacant state Supreme Court seats, as well as the Michigan Secretary of State’s Office to compose “a short, neutral biography describing each candidate’s background, judicial evaluations, and qualifying characteristics” to help educate the public about Supreme Court candidates, since “races for supreme court justice rarely attract enough media attention” to adequately enlighten voters.
In addition, the task force has recommended the establishment of a non-partisan citizens campaign oversight committee to monitor candidates’ and third-party political advertisements for state Supreme Court candidates, in order to “check the factual claims in the advertisements and denounce false, misleading, or destructive messages.”
As is often the case with a large set of proposed reforms, some of the task force recommendations are more crucial than others. Among those we’d most like to see implemented is full disclosure of state Supreme Court campaign advertisement funding.
According to the task force’s report, over 50 percent of all spending on state Supreme Court races in the last decade went undisclosed, creating a transparency vacuum. As the task force notes, interest groups often select innocuous names that hide the group’s real interests and motivations. What’s more worrisome is that interest groups’ advertising expenditures aren’t subject to disclosure under the state’s campaign finance reporting system. The voters deserve, and would benefit from knowing the sources of campaign ads, especially since they rely on the ads because there’s little media coverage of Supreme Court races. Full disclosure would also help ensure that justices recuse themselves from cases related to or involving special interest donors who paid for campaign ads.
Elimination of the partisan nomination process for Supreme Court candidates is long overdue. Although state Supreme Court candidates run in non-partisan races, they must receive a political party’s nomination at a nominating convention in order to appear on the ballot, which “compels would-be candidates for nomination to the Supreme Court to compete for support from party insiders, who may prefer conformity to party ideology over devotion to the judicial qualities of impartiality, even temper, and intellectual honesty,” according to the task force.
Having Supreme Court candidates run in non-partisan elections only after being nominated by a political party is one of the most ridiculous aspects of our election system. Task force members find the partisan nominating process to be troublesome because it “strengthens the popular perception of the justices as partisan” when they have to “spend precious resources pursuing party loyalists’ endorsements and funds from across the state.” The group’s proposed solution is to nix the political party nominations in favor of open primaries, whereby candidates collect petition signatures to earn a spot on the non-partisan primary ballot, just like circuit court and district court candidates, for example. This would reduce the influence that political party chieftains hold over candidates and justices, and eat away at the notion that justices decide cases based on party ideology.
Another worthwhile change is amending the state constitution to eliminate the prohibition on appointing or electing a judge 70-years-old or older. No other elected position in the state is subject to an age limitation, making the current constitutional provision truly arbitrary. It often forces effective, experienced judges to end their careers and service, and disqualifies some otherwise legitimate and viable challengers.
We also support the idea of a non-partisan citizens campaign oversight committee to check the factual claims in campaign ads and ferret out false or misleading language. One can’t expect a fair and honest Supreme Court if the campaigns aren’t run in the same manner.
It’s doubtful much will come of these recommendations in an election year, but we’d be very pleased to be wrong about that.