If the question is, are Michigan judges appointed or elected, the answer is, “both.” That’s certainly true at the very highest levels. Five of the seven currently serving Michigan Supreme Court justices were appointed by Governors John Engler or Rick Snyder after their predecessors resigned. Later, they commonly go on to get reelected.
That normally isn’t hard to do if you are already on the court, because the ballot notes that you are already a Supreme Court justice, whereas your opponent is Brand X.
And as you know from a lifetime of watching TV commercials, generic stuff is never as good as the name brand. Michigan’s Supreme Court has also become highly partisan.
Here’s a prediction for you that may serve as proof: If Gretchen Whitmer wins the election next month, Chief Justice Stephen Markman will then resign before January, so that Snyder can appoint a Republican justice in his place.
Markman’s current term lasts another year, but he will turn 70 in June, and won’t be eligible to run for reelection. That’s another thing about our judicial rules:
No Michigan judge at any level can be elected after they turn 70. They can finish out their term if they turn 70 while on the bench, but cannot run after that. In other words, U.S. Supreme Court Justice Ruth Bader Ginsburg may be one of the greatest judicial minds around.
But she couldn’t leave the nation’s highest court to run for election to any court in Michigan, because legally, she’s too old. If that sounds ridiculous, it is because it is.
There was a time when 70 was old. If you’ve ever seen a video of John F. Kennedy’s inauguration, you may have seen the elderly-looking outgoing President, Dwight D. Eisenhower, sitting there all bunched up against the cold. He had just turned 70 then.
Donald Trump was older than that when he was first elected two years ago. The three top potential Democratic Presidential candidates will all be older than 70 by Election Day.
Nevertheless, we boot out our state judges when many of them might be in a position to do their best work. That isn’t true for federal judges, who are appointed for life.
Some years ago, a Michigan district judge claimed the age limit was unconstitutional, and sued in federal court. U.S. District Judge John Feikens upheld the 70-and-out rule. Feikens was, by the way, either in his late 80s or early 90s at the time, and stayed on the bench until he died.
As for the question of whether judges should be appointed or elected, that, too often, comes down to this: Either we can have governors appoint partisan hacks, or we can let the people elect judges they know nothing about.
The only time an incumbent Michigan Supreme Court justice lost a reelection bid in recent years was ten years ago, when then Chief Justice Clifford Taylor lost to Diane Hathaway. Hathaway, however, soon had to resign after being charged with felony mortgage fraud.
There is a potentially better way of selecting judges; a nonpartisan or bipartisan panel of experts and citizens could do diligence and recommend three names to the governor every time there is a judicial vacancy, and he or she would then pick one of the three.
Former Supreme Court Justice Marilyn Kelly helped design such a plan for state Supreme Court vacancies a few years ago. Unfortunately, Governor Snyder showed no interest in it.
One of the best things the next governor could do would be to work to de-politicize the judiciary. But don’t hold your breath.
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