A forum sponsored by the Judicial Selection Task Force chaired by Michigan Supreme Court Justice Marilyn Kelly and federal Judge James Ryan at the Wayne State University Law School Tuesday started with some predictable sniping between Michigan Chamber of Commerce general counsel Bob LaBrant and Michigan Democratic Party chair Mark Brewer; it ended with memorable presentations on merit selection from former Michigan Chief Justice Clifford Taylor and retired U.S. Supreme Court justice Sandra Day O'Connor that were as different in style as they were in substance. In between, the capacity audience heard Hugh Caperton, of Caperton v Massey fame, describe from his personal perspective the course of the decade-long legal battle that led to the landmark U.S. Supreme Court decision. Rich Robinson of the Michigan Campaign Finance Network made a detailed case for disclosure of third party expenditures in judicial campaigns. Dr. David Rottman of the National Center for State Courts described the development of informal campaign conduct committees as a mechanism for addressing judicial campaign abuses, and Rebecca Kourlis, former justice of the Colorado Supreme Court and executive director of the Institute for the Advancement of the American Legal System, advocated for judicial performance evaluations as a useful tool for voter information on judges, and described the important elements of effective evaluations.
The afternoon belonged to the the headliners of the event -- Justice O'Connor and Justice Cliff Taylor. Justice Taylor led off with a no-holds-barred critique of merit selection as a system infused with politics that empirically has favored liberal candidates. He called into question the motives of merit selection's "anti-majoritarian" supporters, and defended the electoral system as an opportunity to explain what's at stake in judicial selection directly to the citizens in an open election. Taylor commended to the members of the Task Force, whose impartiality he questioned, several sources of anti-merit-selection scholarship and commentary.
Justice O'Connor addressed the room in a plain-spoken, low-key manner, anchoring her support of merit selection in her own experience as both an elected and appointed judge. In her most assertive statement, she suggested that judicial elections are inconsistent with our constitutional democracy, which constrains the majority under conditions laid out in the Constitution. To illustrate her point, she asked, rhetorically, whether it was likely that an elected Judiciary would have reached the same result as the U.S. Supreme Court in Brown v. Board of Education, an unpopular decision at the time.
SBM Blog will post links to the speeches and materials from the Forum as they become available.
Disclosure: the editor of SBM Blog is a member of the Judicial Selection Task Force.
