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Stacking the judicial deck

Jack Lessenberry

We’ve been focused so much on elections that many of us haven’t much noticed what’s been going on in Lansing.

Well, those who remember the unseeingly way Right to Work was rammed through the legislature in last year’s lame duck session, may find we’re about to get déjà vu all over again.

Republicans have just passed a bill to radically change the way in which judges are selected when citizens sue the state. Essentially, it allows the state Supreme Court to pick four judges from the Court of Appeals to hear these cases. 

The panel that hears lawsuits against the state, by the way, is called the Court of Claims. For many years, this function has been exercised by the circuit judges in Ingham County. That’s the county where Lansing and our state government are located, which has been logistically convenient. This bill will change that.

Most judges are non-partisan in name only. Michigan’s highest court currently has five Republican judges and only two nominated by the Democrats. When Governor Snyder signs this bill, which he’s indicated he will do, it will give the highest court the ability to stack the deck by appointing judges with a certain political bent.

Now, Democrats might well be able to do that too someday, which wouldn’t be a good thing either. But Republicans are likely to control the state Supreme Court for the next few years. Which is why they rammed this bill through.

If this were the 1970s, when the atmosphere was not so partisan and the parties less ideological, this might not bother me so much. I’d support it now, if the four judges were selected by blind draw. You can certainly argue that it isn’t representative to have only Ingham County judges ruing on claims filed against the state. 

Indeed, under this law, future Court of Claims panels would have to include judges from at least two of the four court of appeals districts. But this plan smells of partisanship, not geography.

Michigan’s Supreme Court has been called the most partisan state Supreme Court in the nation. The justices know very well the political and ideological leanings of the appellate judges.

Ingham County Circuit Judge Rosemarie Aquilina wins high marks for fairness. She was the one person grand jury who looked at election-rigging allegations against Speaker of the House Jase Bolger earlier this year. Though Democrats desperately wanted Aquilina to indict him, she concluded there were insufficient grounds.

Earlier this week, she told the Gongwer News Service the Court of Claims bill, “is a violation of separation of powers, it’s a violation of the people’s right to a trial; it’s a violation of access to the court.” And she added, ‘this is really putting the Constitution on meth.”

For his part, the governor made the odd statement that while he had no political motives, quote, “Many pieces of legislation I’ve signed as governor have political implications, but I just try to do the right thing, and politics are politics.”

Where I come from, having the deck stacked against you before you enter the courtroom isn’t the right thing. Those folks who wrote both our state and federal constitutions felt the same way.

Jack Lessenberry is Michigan Radio’s political analyst. Views expressed in the essays by Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.

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