The Politics of Judicial Selection: The Case of the Michigan Supreme Court

Article excerpt

"If there's a reform I would make, it would be that"

Justice Ruth Bader Ginsburg, in response to a question whether states should replace judicial elections.1

"Judicial elections are democracyenhancing institutions that operate efficaciously and serve to create a valuable nexus between citizens and the bench."2

As the debate rages between those who argue that judicial elections are bad for legal justice vis-a-vis those who argue that they are good for democracy, there remains the singularly unique system of judicial selection in Michigan. For its Supreme Court justices, Michigan employs a hybrid electoral system, where candidates are first nominated at political party conventions, after which those candidates run in nonpartisan general elections. Moreover, vacancies are filled by interim appointments made by the governor with no outside input or oversight. How did Michigan come to use this system which is different from all other states in the country? In this study we discuss the history behind Michigan's judicial selection system. We show how Michigan transformed from an appointive system to one that employed partisan elections, and finally to the current hybrid system. The accounts behind the manner in which Michigan selects its Supreme Court justices provide a glimpse into the political forces among political and legal elites, interest groups, and the electorate that have shaped judicial politics within the state. We thus illustrate how the form of judicial selection that is unique to Michigan evolved and has been sustained over time.

When then Michigan Circuit Court Judge Diane Hathaway defeated Supreme Court Chief* Justice Clifford Taylor in the November 2008 election, it was the first time ever that an incumbent Chief Justice had been defeated at the polls in Michigan. In fact, it was only one of a few times that an incumbent had lost an election in Michigan Supreme Court history. How did this happen, particularly in a state with non-partisan general elections for its Supreme Court? Did Michigan's unique system for selecting its Supreme Court justices, where political party conventions nominate the candidates for the non-partisan general election ballot, play a role?

The manner by which judges are selected in the United States has fascinated scholars, lawyers, interest groups, and many others, and for good reason. As the clamor over the recent retirements of U.S. Supreme Court Justices David Souter and John Paul Stevens shows, judicial selection is a critical part of the judicial and political processes. Whether discussing judicial selection in the federal or state courts, many actors within the political and judicial systems are involved; and, the method of selecting judges has the potential to influence decision making on the bench.

As the quotations above suggest, strong opinions abound with particular respect to judicial elections, and much has been written recently on judicial elections both within and outside the scholarly community.3 Moreover, the Supreme Court's decisions in Republican Party of Minnesota v. White* and Citizens United v. Federal Election Comm'n5 have provided additional fuel to this fire.

Despite the contentious arguments over the appropriateness and efficacy of judicial elections, there are more alternatives confronting a state than a dichotomous decision whether or not to hold judicial elections. In this regard, Click and Vines6 discussed five formal systems of judicial selection in the states: 1) non-partisan elections; 2) partisan elections; 3) gubernatorial appointment; 4) legislative selection; and 5) nomination by commission, otherwise known as the Missouri Plan or "merit" selection.7 Some submit there are but two formal methods of selection, appointments and elections, and all others are simply variants of these major categories.8 However, since there are significant distinctions between and among the five categories listed above, we agree with Glick and Vines and many others who consider these to be separate and distinct methods of selection. …