Pernicious politics: It's time to bench Partisan politics from the bench


by Hon. Christopher S. Ninomiya   |   Michigan Bar Journal

The judicial branch is once again in danger of bending and breaking. Political parties have adopted strategies that involve trying to weaponize the judiciary, and some would suggest that those strategies are working. It is not being done covertly or on the sly. It is open and obvious and even becoming regular fodder during campaign speeches. This is not a novel approach, nor is it a new problem. Various efforts and battles to control the judiciary have been waged for centuries.

As the finishing touches were being placed on this column, a proposal to impose term limits on the justices of the United States Supreme Court was pending in Congress. This is in addition to other proposals under consideration to increase the number of justices and other attempts to create more “balance” on the high court.

This author respectfully submits that the judiciary should remain fiercely independent and apolitical, particularly when the country seems sharply divided down political fault lines and our democracy is feeling tremors in its very foundation. It is time for the judiciary to reassert its independence and maintain its integrity.

As a sitting judge, I am not naïve nor arrogant enough to suggest that judges and judicial candidates are above the traditional political fray. All elected officials must engage in the process to at least some degree. But as extreme and divisive as our national politics have become, history has apparently taught us nothing. As judges, we are certainly not better or more important than anyone else, and we are by no means superior to the two other branches of government. But we are different from the other two branches in an increasingly important aspect. With a few notable exceptions and the caveat and acknowledgement that politics has always played at least some part in the judicial branch, we have been traditionally and historically non-partisan in carrying out our constitutional responsibilities. At a minimum, it is what good jurists have always striven for despite political parties vying for power in the hopes that they will be able to put their stamp on history by appointing judges that presumably share their political views. The judicial confirmation process itself has become a charade, forcing potential judicial appointees to tie themselves in knots in an effort to avoid providing any semblance of an answer to pointed questions. But as the late U.S. Supreme Court Justice Ruth Bader Ginsburg pointed out, “[A] judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”1

On state and local levels, judicial positions have similarly been politicized. The Judicial Tenure Commission is regularly confronted with questions as to whether judges or judicial candidates have crossed ethical boundaries by attending political functions, endorsing political candidates, or engaging in overtly political conduct while seeking judicial office. Each election cycle, the conduct seems bolder and more egregious, which leads one to believe that the distinction and proud heritage of the judiciary is being eroded by wave after wave of political gamesmanship. As we have all witnessed, it is not uncommon for judges to be publicly criticized by political figures if a particular ruling does not go their way. Some politicians and commentators even presume that a “conservative” or “liberal” judge will rule in their favor based on the judge’s presumptive party affiliation or judicial philosophy. Sadly, they have frequently lost sight of the individual functions and responsibilities of our three branches of government. The lines should not and must not be blurred.

It has become clear that some politicians view the judiciary simply as a means to support their political agendas. However, instead of being pawns in a political game, the judiciary needs to diligently maintain its independence. Judges are guided and bound by the Constitution and established canons, laws, and precedent. They are not beholden to the powers that appointed them or helped them attain office. Nowhere in the judicial oath is it mentioned that we swear to uphold the agenda of the political party that nominates or supports us. We should cast aside with aspersions anyone trying to be a judicial Geppetto. Furthermore, judges or judicial candidates wanting to wrap themselves in a cloak of a political party to gain office or march in lockstep with a political party’s agenda regardless of the law are committing a tremendous injustice with ramifications that affect the integrity of the entire judiciary. These are quintessential leaves that need to be promptly and vigorously shaken from the judicial branch.

Instead, learned judges should carefully weigh facts and evidence and evenly, fairly, and objectively apply the law. Case outcomes are ideally dictated by the careful consideration and adherence to this procedural protocol. There is always room for respectful debate and countless variations of judicial philosophies. But the crux of a healthy and independent judiciary harkens back to the Constitution — it is a judge’s guiding light and as stable as the Rock of Gibraltar. Regardless of whether an outcome personally appeals to a judge or to the public, and regardless of whether it aligns with our personal or political beliefs, our oath and our duty is to uphold the Constitution and our laws. U.S. Supreme Court Chief Justice John Roberts has recognized this very principle: “Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”2

The Michigan Code of Judicial Conduct is specific and instructive when it comes to the topic of judges, independence, and political activity. In fact, Judicial Canon 1 is entitled, “A Judge should Uphold the Integrity and Independence of the Judiciary.” It is unlikely a mere coincidence that the drafters of the judicial canons reference the importance of judicial independence right out of the gate. Canon 1 goes on to state that “an independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary.”

Judicial Canon 2(F) states that “a judge should not allow activity as a member of an organization to cast doubt on the judge’s ability to perform the function of the office in a manner consistent with the Michigan Code of Judicial Conduct, the laws of this state, and the Michigan and United States Constitutions.” It is also made clear in Judicial Canon 5 that several of the regulatory canons apply to judicial candidates as well as current judges. They are equally subject to discipline for judicial campaign misconduct.

Judicial Canon 3(A)(1) goes on to say that “a judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism.” Judicial Canon 7 further discusses political activity by judges and judicial candidates. Judicial Canon 7(A)(1) indicates that “a judge or candidate for judicial office should not: (a) hold any office in a political party; (b) make speeches on behalf of a political party or nonjudicial candidate or publicly endorse a candidate for nonjudicial office.” Judicial Canon 7(A)(2) allows for only limited political activity, including “(a) attend[ing] political gatherings; (b) speak[ing] to such gatherings on the judge’s own behalf or on behalf of other judicial candidates; and (c) contribut[ing] to a political party.”

It is clear that the drafters of the Michigan judicial canons wanted to ensure that judges and judicial candidates were not engaging in overtly partisan politics. But trying to limit political operatives is a different type of challenge that roughly equates to pouring sand into a colander. One frequent concern is a political party or partisan candidate campaigning on behalf of a judge, including them on partisan literature, or otherwise claiming or alluding to the judge or candidate as a member of their tribe. While it is certainly possible to hold judges and judicial candidates accountable, it is much more difficult keeping the politicians and political forces at bay. For a variety of reasons, it may be mutually beneficial to attach themselves at the hip. It is therefore incumbent on those individuals running for judicial office to ensure that the ethical line is not crossed. Unfortunately, in some instances, this is akin to asking the fox to guard the henhouse.

To be clear, this author is not entirely cynical, skeptical, and pessimistic. We are fortunate to have a significant majority of Michigan judges who adhere to the basic judicial philosophy that is lauded by this article. For example, a recent examination of the 2019-2020 session of the Michigan Supreme Court showed that nearly 67% of the court’s 48 cases resulted in unanimous opinions. Only 33% of the decisions were split and of those split decisions, only two were decided along party lines.3 A similar look at the Michigan Supreme Court 2021-22 session showed that just 13% of decisions fell upon party lines.4

Perhaps there is some irony at play, as our Michigan Supreme Court judges are nominated by political parties. However, this is an encouraging example of how judges can simultaneously be thoughtful, independent, considerate, respectful, and collegial. And while it is important for judges to break free from the reigns of a political party, it is equally important for political parties to understand and respect that judicial officers are not their means to an end.

It may also be an appropriate time to reexamine the methods by which we appoint and nominate our Michigan Supreme Court justices. If meaningful reform is to be accomplished, it makes sense to start at the top. The current process has become extremely political and is antithetical to a truly independent judiciary being appointed or nominated. Nonpartisan candidates are effectively forced to choose a side. The process seems awkward, exclusive, and disingenuous in many respects.

Perhaps it is time to consider a bipartisan screening commission that serves as a gatekeeper for those seeking appointment or to those party nominees that ultimately appear on the ballot if the current nomination process is left intact. A threshold level of qualifications, experience, and ethical integrity could be established by the commission as a prerequisite for consideration. And while candidates who failed to meet the developed and agreed-upon criteria would not be eligible for appointment or nomination, they would, of course, remain free to run for election. A reasonable set of reforms to the existing process would ensure that only well-qualified candidates are ultimately considered for appointment or nomination. This would be a step in the right direction toward a judiciary that remains truly independent and highly qualified.

I am not trying to insinuate that unqualified candidates have ascended to the upper echelons of our courts on the wings of politicians, but it would certainly make sense to reduce this possibility with appropriate reforms and logically extend those reforms to the trial courts. It is reasonable to believe that some judicial candidates have obtained office (or at least increased their chances) by pandering to the powers that be, and that is unfortunate. The money train often accompanies political endorsements, and it is increasingly difficult to mount a serious campaign without sufficient financial resources. And for some, the lure of the lucre compels them to try and hitch their horse to a political wagon. Hopefully with additional training and education, they will soon realize that the calling of being a judge involves something far greater than adhering to a political agenda, keeping supporters satisfied, and obtaining or retaining judicial office.

In conclusion, it is important to remain vigilant in these turbulent political times. The judiciary needs to be solid and steadfast in the political seas that swirl around us. By remaining independent, we can successfully navigate a course between the Scylla and Charybdis. And despite the temptations, judges and judicial candidates cannot allow themselves to be drawn into the political morass. It is respectfully submitted that if the judicial branch becomes as political as the other two branches of government, our entire system of checks and balances is in peril. We need to protect the foundation of government and remove the judicial branch from partisan politics to the greatest extent possible. The constant attacks upon judicial independence are slowly, but surely, damaging the walls of the institution. Perhaps it is time to shore up the foundation.

“Ethical Perspective” is a regular column providing the drafter’s opinion regarding the application of the Michigan Rules of Professional Conduct. It is not legal advice. To contribute an article, please contact SBM Ethics at


1. Nomination of Ruth Bader Ginsburg, to be Associate Justice of the Supreme Court of the United States: Hearings Before the Committee on the Judiciary, United States Senate, 103rd Cong, 52 (1993), available at [] (website accessed August 16, 2022).

2. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the Committee on the Judiciary, United States Senate, 109th Congress, pp 55-56 (2005), available at [https://perma. cc/3UXA-7J4Z] (website accessed August 16, 2022).

3. Out of 48 Cases Last Term, Supreme Court Divided on Party Lines Twice, MIRS (January 9, 2021).

4. MSC Splits Along Party Lines 13% This Term, MIRS (July 29, 2022).