The Way I See It
The Way I See It--Open Letter to the Governor and the Legislature Re: A Better Way to Select Supreme Court Justices
It appears that a great many Michigan citizens (including justices, judges, and lawyers) believe there must be a better way to select Michigan Supreme Court justices than that currently in effect. No attempt will be made to document this assertion. Suffice it to say, the current system (nomination at a political party convention, with all the activity that entails, and election at a nominally nonpartisan general election) makes it impossible for a justice to appear to be above partisan influence. In matters of such public importance, appearances are as important as facts.
In considering an improved procedure, it is appropriate to review how justices are selected in the other 49 states.1 No other state does it the way Michigan does.
In 20 states,2 the governor appoints Supreme Court justices from nominees submitted by a nominating commission.3 In four4 of those states, the governor’s appointment must be approved or confirmed by the state senate.
In four states,5 justices are appointed by the governor subject to approval or confirmation by the state senate or an executive branch council.
In 12 states,6 justices are elected at nonpartisan elections.
In nine states,7 justices are elected at partisan elections.
In four states,8 justices are appointed by the Legislature, and in one9 of those, the Legislature is required to appoint from nominees submitted by a nominating commission.
In only one state, Michigan, are justices nominated at political party conventions for election at a nominally nonpartisan general election. I say ‘‘nominally nonpartisan" because the two major parties go to great expense to publicize their Supreme Court nominees, while candidates for other judicial offices must scrupulously avoid partisan endorsements.
In 19 states,10 justices seeking re-election run uncontested at nonpartisan retention elections. These include three states11 where justices first reached or were retained in office by running in partisan elections.
Much is made of the fact that, in Michigan, justices usually reach the Supreme Court bench for the first time by appointment by the governor to a vacancy created by the retirement, resignation, or death of an incumbent justice. However, not more than two years later, the new justice and two other incumbent justices must face the partisan nominating process preceding the nominally nonpartisan general election. It is also worth noting that no other state appears to have as its primary judicial selection process (as distinguished from the filling of vacancies between elections) appointment by the governor without either the participation of a nominating commission or confirmation or approval by the state senate or other body.
I urge you to consider the following amendment to Article VI of the Michigan Constitution. If approved by the Legislature and the people, it would provide for selection of justices in the way done by 16 other states, the largest number of states using any single procedure. This method is often referred to as the Missouri Plan, since that state was the first to adopt it, followed by California and 14 other states. Altogether, there are 27 states in which the people have said that the authority of the appointing power should be limited by requiring appointment from a list submitted by a nominating commission or approval by the state senate or other body.
How long can Michigan tolerate a system of selection to its highest court that creates an appearance of impropriety and is so far out of step with a majority of her sister states?
Justices of the Supreme Court; number,term,
1 Table 4.4, Selection and Retention of Judges, pp 135-137, The Book of the States, Volume 32 (1998-99), The Council of State Governments, Lexington, Kentucky.
2 Alaska, Arizona, California, Colorado, Delaware, Florida, Hawaii, Indiana, Iowa, Kansas, Maryland, Massachusetts, Missouri, Nebraska, New Mexico, Oklahoma, South Dakota, Utah, Vermont, Wyoming.
3 The term ‘‘nominating commission" is used generically. Different states use different names. However, ‘‘judicial nominating commission" is used by more states than any other name.
4 Delaware, Hawaii, Maryland, Vermont.
5 Maine, New Hampshire, New Jersey,New York.
6 Georgia, Idaho, Kentucky, Louisiana, Minnesota, Montana, Nevada, North Dakota, Ohio, Oregon, Washington, Wisconsin.
7 Alabama, Arkansas, Illinois, Mississippi, North Carolina, Pennsylvania, Tennessee, Texas, West Virginia.
8 Connecticut, Rhode Island, South Carolina, Virginia.
10 Alaska, Arizona, California, Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Utah, Wyoming.
11 Illinois, New Mexico, Pennsylvania.