What price justice?That’s a reasonable question, especially in light of the way we pick the judges who sit on the Michigan Supreme Court. You wouldn’t think campaign contributions should have anything to do with judges, but they do. State supreme court judges are nominated for office at partisan political conventions.
But in the November election they appear on the nonpartisan ballot, mysteriously shorn of their political party. Those who are already on the court get “incumbent” on the ballot along with their name, which almost always means certain re-election.
Non-incumbents slog forth on their own, with successful ones usually glorying in Irish names like Kelly or Cavanagh. They are supposed to be above the battles. But like candidates for any other statewide office, Supreme Court nominees have to raise money to pay for their campaigns, often quite a lot of money.
For example, Michigan Justice Robert Young told George magazine in July 2000, “My advisors tell me I’ll have to raise $1 million or more to run a Supreme Court race.” This raises all kinds of conflict of interest problems, both apparent and real.
A couple of weeks ago, the New York Times ran a piece about a study conducted by Tulane law professor Vernon Palmer. He found that campaign contributions indeed seem to influence Louisiana Supreme Court justices’ votes on cases before the court. Louisiana picks its Supreme Court by a method much the same as Michigan’s. Professor Palmer found that Louisiana justices vote in favor of their contributors 65 percent of the time, on average. Even worse, it turns out that, “The greater the size of the contribution, the greater the odds of favorable outcome.”
We may want to inquire whether we’ve got the same problem in Michigan, because there is potential danger to democracy here.
As “Campaign Finance Talk,” the newsletter of the Michigan Campaign Finance Network, notes: “The winners of Michigan Supreme Court elections raise hundreds of thousands of dollars in campaign contributions and, more likely than not, somewhere among the litigants or counsel in the next case the Court hears there will be at least one contributor to at least one justice.”
Indeed, the National Institute on Money in State Politics found that throughout the 1990’s, 86 percent of the cases heard by the Michigan Supreme Court involved at least one campaign contributor to at least one of the justices. Some contributions were clearly large enough to create the appearance of a conflict of interest.
For example, since 2000, something like $23 million has been spent on Supreme Court elections. Of that, around $10 million was spent for “issue” ads that just somehow appeared to support one candidate or another. According to the Campaign Finance Network, the Michigan Chamber of Commerce spent $6 million for ads benefiting the five Republican incumbents who now sit on the Court.
The Chamber isn’t alone, however; groups aligned with the Democrats also have been deeply involved in the practice, if not quite as successfully. (Republicans now have a 5-2 majority on the court.)
Richard Studley, executive vice president of the Michigan Chamber, points out that there’s nothing either illegal or inappropriate about business – or any other interest group – contributing to judicial elections. “You can win in the legislature or with the executive, but you can lose in a court decision,” Studley says. ”So it’s in our legitimate interest to make our point of view known here, just so long as it’s legal and everybody plays by the same rules.”
That sounds right.
But it doesn’t immunize our Supreme Court from the suspicion that campaign cash up front often yields favorable decisions downstream. And that’s bad. Very bad.
To some extent, it’s easily curable by justices declining to participate (“recuse themselves”) in cases where the parties or their lawyers have made substantial campaign contributions. But Rich Robinson, head of the Michigan Campaign Finance Network, says it is “quite rare” for Michigan justices to do so.
The American Bar Association recently published a new code of judicial conduct, inviting states to consider what contribution amount should trigger a judge’s decision to remove themselves from cases.
So far, Michigan has not followed through. Earlier this year, Sen. Deborah Cherry (D-Burton) introduced Senate Bill 128, which calls for public financing of campaigns for the Michigan Supreme Court. Candidates would be required to raise $50,000 to show that they are serious and have a real base of support, but the money could only come in amounts less than $500.
Once they qualify, candidates would receive in public funds the average amount raised by candidates in the two previous election cycles. This bill may or may not get anywhere, probably not.
In the meantime, both sitting justices and this year’s candidates should make an effort to come clean. (Only one seat is on the ballot this time, that of Chief Justice Cliff Taylor, a Republican who’s been on the court for a decade. He‘s trying for a new eight-year term.)
The justices should set hard and fast rules about when they — and all other Michigan judges — should withdraw from cases that involve campaign contributions above a certain amount.
Our Supreme Court is responsible for the fair and impartial rule of law in Michigan and the administration of all the courts. That means they should promptly squash any hint that justice is for sale.
Editor’s Note: Former newspaper publisher and University of Michigan Regent Phil Power is a longtime observer of Michigan politics and economics, and a former president of thr Michigan chapter of the Nature Conservancy. He is also the founder and president of The Center for Michigan, a centrist think-and-do tank. The opinions expressed here are Power’s own and do not represent the official views of The Center. Power welcomes your comments at ppower@thecenterformichigan.net.
