The problem with saying out loud that Michigan's system of electing our Supreme Court justices undermines public confidence in the Court is that people might conclude that we don't just have a perception problem, we have an actual problem -- that because their campaigns are funded by private contribution justices are de facto corrupt. The problem is neatly illustrated in Brian Dickerson's column this weekend in the Free Press, "The case of money v. justice in Supreme Court," in which he says:
State Supreme Court Justice Marilyn Kelly and U.S. Court of Appeals Judge James Ryan are two of the most experienced jurists in Michigan. They tend to diverge on political matters -- she's a liberal Democrat, he's a conservative Republican -- but between them is more than 25 years of service on our state's highest court.
So when Kelly and Ryan stand up at a press conference to tell you that court has been bought and paid for by special interests, it should get your attention.
They didn't come right out and say that, of course, because both are extremely courteous people, and they do not want to suggest that justices with whom they have appeared in countless official photographs have the same ethical standards as, say, Kwame Kilpatrick.
Fact is, the distinguished and very knowledgeable co-chairs of the Judicial Selection Task Force not only didn't say that the Court has been bought and paid for by special interests, they, and the Report (PDF) issued by the Task Force last month, were scrupulous about not saying that because that's not what the members of the Task Force believe.
I know. I was there. (I served as a member of the Task Force. The State Bar itself has not yet considered or taken a position on the Report's package of recommendations.)
Here's part of what the Task Force Report had to say:
As a result of undisclosed spending, citizens and litigants alike lack a sound basis for confidence in the impartiality of their highest court. Michigan voters already believe that campaign spending has infected the decision-making of their judiciary; 63% believe that judicial campaign contributions have a lot or some influence on the decisions judges make. Perhaps this explains the overwhelming support nationwide for full-disclosure laws among both Democrats (86% in favor) and Republicans (88% in favor). In Michigan, 96% of voters believe it is very or somewhat important to require public disclosure of all sources of spending for judicial elections.
The Task Force worried a great deal about the danger of others bootstrapping the Task Force identification of the perception problem into a conclusion of actual corruption. But the Task Force concluded that the actual problem of public perception is real and urgent, that there are sensible, practical remedies, and that the time to act is now, before the problem becomes worse. To conclude that we shouldn't do anything about the perception problem because there is no proof of corruption is kinda like saying that Iago wasn't really a problem in Othello's marriage because Desdemona was actually faithful. And we all know how that worked out.
Art: Eugène Delacroix, Othello and Desdemona, c. 1847-1849, National Gallery of Canada
