If you look at the ways in which we pick state and federal judges, you are bound to conclude that at least one of the two methods makes no sense.
In the federal system, justices are nominated by the President of the United States, confirmed by the U.S. Senate, and then they stay there as long as they want to be, essentially for life, as long as they exhibit “good behavior.”
Oh, they can be impeached and removed by the Congress, but only eight have been in our entire history. Many federal judges stay on the bench into their 90s, and we have had federal judges over 100.
State Supreme Court judges, on the other hand, have to run for election and re-election every eight years, and cannot run after they turn 70 years of age.
That means that although Joe Biden may well be elected President of the United States this year, he would be ineligible to run for the Michigan Supreme Court, because he is too old.
On top of that, there’s something else about the way Michigan picks high court justices that seems bizarre. They almost always get elected only after having been nominated by one of the two major political parties, Republican or Democrat. Does that mean that justice should be partisan?
Of course not. And judicial candidates can’t answer questions as to how they would rule on a particular issue. But in practice, everyone knows that the Republican Party would almost certainly never nominate a candidate who is pro-choice, just as the Democrats wouldn’t nominate one who is anti-abortion.
There is a reasonable argument that voters should have the right to elect those who sit in judgment of them and the laws their legislators make. That might make sense, if we had a fully informed electorate. But too few busy voters know much about judicial candidates.
For years, it was a given that if you wanted to get someone elected as a judge in this state, having the last name Kelly, or O’Brien helped a lot. There’s also a reason to worry lest voters retaliate against a judge who made a judicially sound, but unpopular ruling.
There’s also the fact that most Michigan Supreme Court justices in recent years have first been appointed to fill vacancies. When they run for reelection, they are listed on the ballot as a justice of the Michigan Supreme Court, meaning their opponent is that “Brand X” commercials always tell us not to buy.
What I would like to see is a system where some reputable group like the Michigan Bar Association picks a pool of six of the best-qualified candidates from which the governor could choose any time there is a vacancy.
We might also use this system to select candidates for nonpartisan judicial races. But without a constitutional amendment, that would require politicians to voluntarily give up some power. Don’t hold your breath.
