By Paul Rozycki
What is it that makes us trust our judges?
Their independence in office and manner of appointment.
–John Marshall
Last month, Genesee County witnessed a rather unusual event — as reported by East Village Magazine — a judicial forum for the candidates running to fill three slots on the 7th Circuit Court. In a forum hosted by the League of Women Voters and the Genesee County Bar Association, eight candidates had an opportunity to introduce themselves to the voters, and offer their views on the role of the courts in the county. While most elections present a parade of candidate forums, from governor to city council, judicial forums are rather rare. For as important as they are, the election of judges often gets little attention from voters.
Little attention to judicial elections
There are several reasons for this.
Most of the time there is little competition for judicial seats. Incumbents have long terms — eight years for the Michigan Supreme Court and six years for all the other judges — and often run unopposed, or have nominal opposition, and are rarely defeated.
A second reason is the nature of the job of being a judge. Unlike other candidates, judges cannot promise a five-point plan to lower taxes, create jobs, fix the roads, bring world peace, make America great again, or cure the heartbreak of psoriasis. As judges, they should not express opinions on cases that might come before them. So most judicial candidates tend to sound rather similar. Typically they are in favor of “equal justice for all,” more efficient courts and a fair application of the law.
With those limits, a judicial forum gives candidates a chance to meet the voters, present their personal and legal backgrounds, and highlight their commitment to various groups in the community. The heated exchanges that sometimes take place in other candidate debates are unlikely in a judicial forum.
Genesee County Circuit Court elections
Yet, in spite of the fact that judicial forums are rare and rather low key, the judicial elections are just as important as anything else on the ballot this year. In November, Genesee County will be electing three Circuit Court judges. Two of those will fill the seats being vacated by retiring Judges Judith Fullerton and Geoffrey Neithercut, who are prevented from running by the Michigan Constitution’s 70-year age limit. In November, the four candidates who were selected in the August primary will face off. Incumbent Judge Celeste Bell is also facing a challenge from Tabitha Marsh in the fall election. Because of the two open seats, campaigning has been more intense and visible than in most years.
The importance of the local courts can’t be overstated. On the local level they are the first line in the administration of justice in both the criminal and civil courts. For most citizens they are where most serious cases begin and end.
But this year we’ll also be choosing two justices for the Michigan Supreme Court. And the process for nominating and selecting those judges highlights one of the strangest and perhaps most confusing things about Michigan judicial elections.
Officially, in Michigan, we elect all judges on a non-partisan ballot — they don’t run as Republicans or Democrats, as most other candidates do. Electing judges is not unusual; more than two-thirds of the states use an election process to select or retain judges, but our “non-partisan election” is a bit of an odd fiction.
The governor’s appointment power
Yes, we do elect our judges. But when a judge retires, resigns, or dies in the middle of his or her term, the governor can appoint someone to the position. And once they are appointed, and run for reelection, the appointed judges are highly likely to be reelected, since they are listed as incumbents on the ballot. One recent study shows that almost half of Michigan’s judges first got to the bench by being appointed. So, yes, there are elections, but governors do a lot of appointing. A lot of judges begin their judicial careers by being appointed by a governor, usually of their own party. Some judges will even plan their retirement or resignation to give the governor the opportunity to appoint a replacement.
Not quite non-partisan elections
It is also true that judicial elections are officially non-partisan. However, later this month, both the Democrats and Republicans will hold their regular state conventions. On Aug. 25-26, the Democrats will meet at the Breslin Center in East Lansing, and the Republicans will meet in the Lansing Center in Lansing, on the 25th. Both parties will nominate candidates for the governing boards of the University of Michigan, Michigan State University, Wayne State University, the State Board of Education, the secretary of state, attorney general and the lieutenant governor.
At those Democratic and Republican conventions the delegates will also choose “non-partisan” candidates to run for the Michigan Supreme Court. On the ballot, none of the Supreme Court candidates will have a party label behind his or her name, but they will be there because they have been nominated by their party and their party will work for their election.
Don’t overlook the judicial elections
Because of these confusing factors, many voters overlook the judicial part of the ballot. Because they are officially non-partisan, voters who vote a straight-party ticket must make the extra effort to vote on the judges.
Paul Rozycki
Yet the courts are obviously a critical part of the government. On the local level, they decide who goes to jail and who doesn’t, and who can sue or be sued. On the Supreme Court level, they increasingly are involved in critical policy decisions, when the legislature or the governor are deadlocked or in conflict. Often a disappointed party in a legislative dispute or petition drive takes their case to court. Most recently, after a series of legal challenges, the Michigan Supreme Court decided on the whether or not the proposal to create a non-partisan commission for drawing election districts could appear on the November ballot.
Don’t ignore the judges this election year. They are just as important as everything else on your ballot. The League of Women Voters offers more detailed information on all the candidates at Vote411.org.
EVM political commentator Paul Rozycki can be reached at paul.rozykci@mcc.edu.
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