Monday, June 28, 2010


Way back in 1970, when I was Chief Justice of the Michigan Supreme Court, my secretary announced one day that my uncle, Jim Brennan was on the phone.

I don’t think he had ever called me before, or ever did thereafter.

I picked up the phone and said “Hello” expecting to have a cordial family chat with my Dad’s younger brother.

It didn’t work out that way. He immediately launched into a diatribe about Who did I think I was, big deal Chief Justice, that you don’t return people’s phone calls, and your sainted father, God Rest His Soul, would be ashamed of you being so stuck up like some kinda big shot.

I got him calmed down and found out that a member of a poor family in Lansing to whom my grandmother and my aunts and uncles had been sending clothes and canned goods for many years, had called my office a few days before. I wasn’t in. He left his name and phone number.

My secretary asked me if I knew who he was or what he might be calling about. I said “No” on both points, and told her to ignore the call.

The dressing down from Uncle Jim left an impression.

From that day on, I return phone calls. It’s annoying and inconvenient some times, but it’s better than living with the guilt.

I thought of Uncle Jim today as I reflected on a recent exchange of email with the columnist George Will.

Mr. Will did an interesting column on Sunday about the Kagan appointment. I thought his views on appointing Justices of the Supreme Court might be of interest to delegates to Convention USA, and I wrote to ask if he would consider accepting appointment to the convention’s Advisory Board.

Assuming that he must receive voluminous email, I lead with a subject line that I hoped would get his attention. Under the heading “From a Former Chief Justice,” this is what I wrote:

Mr. Will:

I am certain that you cannot read all your email. I just hope that the subject line will induce you to give me three minutes of your time.

I want to call your attention to, an interactive, virtual Article V amendatory convention on the Internet. It is operated by a non profit corporation supported by the dues of the delegates. Any citizen can be a delegate.

We are recruiting a distinguished panel of constitutional scholars and experts to serve as an advisory board. I invite you to join them. There is no cost or obligation other than to render such advice to the delegates as you may get the urge to render, when as and if the urge should strike you.

Your op ed piece today is the kind of realistic thinking I would want all of our delegates to read.

Please look at our web site, at the names already on the Board of Advisors, and accept my invitation.

Thomas E. Brennan
Former Chief Justice of Michigan
Founder, Thomas Cooley Law School
President, Convention USA, Inc.

I sent that email at 6:13:31 PM on June 27.

At exactly 6:14:06 PM on June 27, I received the following reply:

Thank you for your interest in George Will's column.

Due to the high volume of correspondence it is difficult for Mr. Will to reply, but your readership is deeply appreciated.

Doubting that anyone could have read my email, typed that answer and pushed the send button in 35 seconds flat, I sent Mr. Will the following:

While I appreciate the prompt reply to my email, I have the uneasy feeling that it was generated digitally and that no human being has in fact ever seen or read what I wrote to Mr. Will.

Again, I am sympathetic to the demands caused by a high volume of emails, but I had supposed that there are some clerical personnel whose responsibility it is to read or at least skim over, the emails that come in, and make some preliminary decision about whether an email is sufficiently substantive to, at least, merit the attention of a second, slightly higher level of gatekeeper who might have been endowed by his or her Creator with a higher capacity for exercising judgment.

I am therefore requesting that your acknowledgement of this email be accompanied by the name of a real human being who has seen it at your end.

Thanking you in advance for this courtesy, I remain,

Thomas E. Brennan
Former Chief Justice of Michigan
Founder, Thomas Cooley Law School
President, Convention USA, Inc.

I haven’t heard from George. Maybe I should ask my Uncle Jim, God rest his soul, to give him a nudge.

Tuesday, June 22, 2010


In my efforts to focus the American people on the need to consider amendments to the Constitution, I have stumbled on a number of patriotic folks who have their own agendas for saving the nation.

Many, perhaps most, of these have a decided tilt to the left or the right. That’s in the nature of politics, I guess.

But I have always believed that there are a number of common sense ideas that straddle the gulch between liberal and conservative; ideas that would have the kind of broad based appeal needed to win approval by a super majority of the states and of our fellow citizens.

I have been thinking outside the box for so long, I don’t even know where the box is. So, at the risk of finding out that nobody agrees with me, here are some of the constitutional amendments I have scribbled on foolscap over the years:

The Supreme Court of the United States shall consist of the nine current members and their successors who shall be appointed for terms of eighteen years, by the President, without Senate confirmation, from a list of five nominees selected for their learning, experience and temperament by the unanimous agreement of the Justices of the Supreme Court, no two of which nominees shall be residents of the same State or graduates of the same law school.

If the Court does not deliver its list of nominees to the President within seven days of the occurrence of a vacancy, the sitting Court shall be dissolved and replaced by Judges of the United States Circuit Courts of Appeals chosen by lot.

Any State shall have standing to challenge the constitutionality of a law, appropriation, or expenditure of the United States, and the courts of the United States shall have jurisdiction in such cases.

Members of Congress shall receive an annual salary only during their terms of office equal to one half of the annual salary paid to the President of the United States, and no other compensation, benefit or retirement. The Congress shall pass no law exempting Members of Congress from the payment of a tax.

All bills in Congress shall be written in the English language, shall consist of no more than 4,000 words and shall address only one subject matter, which must be clearly stated in the title. No affirmative vote for any bill shall be cast or counted unless the Member shall have certified under oath that he or she has read the bill and understands it.

The Congress shall make no law, nor authorize any expenditure of public funds to invest in, loan to, or subsidize any private corporation or enterprise by reason if its insolvency.

No person shall be eligible for election to the House of Representatives more than six times, nor to the Senate more than twice.

No person, not a legal resident of the United States, shall be eligible to receive any health, education or welfare benefit from the United States or from any State.

The Congress shall make no law delegating its authority to declare war, impose taxes, borrow money or regulate interstate commerce to the President or to any branch of the Executive Department.

May not cure everything, but it’s a start.

Sunday, June 13, 2010


Dear Presidents Clinton and Bush:

We are your fellow Americans and we write to ask for your blessing. We think that our plea deserves your personal attention and response.

We, the people, were pleased to see you come together for the earthquake victims in Haiti. As the leading Republican and Democrat making common cause for humanity, you representred the best of what America is all about.

You both enjoy enormous public respect and affection and you are both still of an age when you can be, and should be, making a contribution of statecraft. America needs you. Needs your experience, your point of view, your expertise.

And we need your leadership. We, the people, are troubled. We sense that our government is broken, that our nation is crumbling, that our future is in doubt.

The pain in our hearts is not just an annoying discomfort with the perennial mess in Washington. No, it's a real, hard pain. Eight or nine on a scale of ten.

We see our two hundred and twenty year old constitution straining to keep up with modern civilization, and falling further and further behind every year.

Thomas Jefferson and James Madison would not recognize the human race if they came back from the dead today. Automobiles? Airplanes? Computers? Satellites? Ipods, for Heaven's sake? What manner of creatures are we?

And that precious document they authored in Philadelphia 221 years ago, where is it?

Entombed in special thermopane cases with helium and water vapor, shielded from ulta violet rays, and lowered electronically into a steel and concrete vault 20 feet below the Exhibition Hall of the National Archives in Washington, D.C.

Is it a living document as the Founders intended, or is it a mummified relic of another day, another time, when patriots pledged their lives, their fortunes and their sacred honor for liberty, and wrote words on paper that they intended to be the Supreme Law of the Land?

They sought to form a more perfect union. They knew that perfection is not possible in human affairs. But they wanted to create a process of deliberate constitution making, a process that would permit each new generation of citizens to own their government.

Because they knew that governments derive their just powers from the consent of the governed.

We're trying, Misters President.

We're trying to do what Madison and Jefferson and Hamilton and Washington wanted us to do.

We're trying to use the tools they gave us in Article V to propose amendments. Useful amendments. Amendments that the experience of two hundred years of republican government have taught us are needed.

We can't get the Congress to help. Congress is a large part of our pain. We need a convention. We need delegates from all fifty states to come together and put their heads together and act together, just the way you did to help the people of Haiti.

A few of us have taken the initiative to form a non profit corporation and launch an interactive, virtual Article V convention on the Internet. We have done so not in a spirit of rebellion, but as patriotic Americans, trying to do what needs to be done for our nation.

I write to invite you to join us in this historic and necessary endeavor. Become our senior advisors, our guardian angels. Give us your support and encouragement. Indeed, we would welcome you to register as actual delegates from your home states.

Most Americans agree that "something needs to be done about our government." We believe that the Article V convention is that 'something.'

Your blessing will mark our efforts as a civic activity in the mainstream of democracy.

Our web site is


Thomas E. Brennan
Former Chief Justice of Michigan
Founder, Thomas M.Cooley Law School

Thursday, June 10, 2010


Just got home from a quiet dinner celebrating the 60th wedding anniversary of my friend Jim and his wife, Mary Ellen.

Our wives attended the same girls’ Catholic high school in Detroit in the waning years of World War II. Later, Jim and I were classmates at the University of Detroit Law School, and when we discovered that our wives were sorority sisters, we reluctantly assumed the role of sorority brothers in law.

A few years later, we found ourselves colleagues on the Wayne County Circuit Court, ambitious young bucks, full of ideals and ideas, dreams and schemes, and a shared determination to make a difference in the public arena. We quit smoking and took up playing squash at noon with a half a grapefruit for sustenance.

He taught me to play squash. I got to where I could give him all the game he wanted. I shall never forget the day we played to see which of us would run for presiding judge. I won, though to this day he denies it. Neither of us got the job that year, although later he was elevated to the position.

Jim was just a tad older than I, and better situated. He belonged to a golf and country club. Was the president for a while. He gave me my first set of golf clubs, a nifty bag full of Haig Ultras. I hacked around with them for more than a decade.

I was often his guest at the club. A hale fellow well met and a man’s kind of man with a booming stentorian voice, his presence in the locker room or the grill was always welcome and obvious.

Six decades is a long time; a life time. A lot of things can happen and did. Jim left the bench after he had been the presiding judge and went back to the practice of law. Bright , hard working and well connected, he prospered in the practice, trained up and ran in some marathons, then somehow stumbled into some troubled times.

The details are unimportant now, after so many years. What matters to me, to his family and his many friends and I’m sure to the final judge who awaits us all, is the way he has coped, the way he has survived, the way he has kept on keeping on day in and day out.

He retired from the law, but not from life. He has become a fixture in our little north Michigan town, a welcome friend, a tireless worker, a dependable neighbor, a leader and volunteer at the club, a raconteur at banquets, a chairman and organizer of tournaments, a gardener, book club regular, Catholic parishioner, faithful dog walker, a devoted husband, a loving father and a doting grandfather.

Jim and I have joked for many years that we don’t really like each other. I tell people that I bought a house in his neighborhood and joined his country club so I wouldn’t have to be his guest at the annual member guest tournament.

That’s mostly true. We have been partners in golf, tennis, gin rummy, you name it. We never win. We are much better at competing than cooperating.

In sixty years I never said anything he agreed with, never did anything he approved of. He always drives the golf cart and if I pick him up in my car, he tells me when to turn and where to park.

Jim has been wrong many times, but he has never been in doubt. His knowledge of people and events is encyclopedic and his recitations are exhausting.

Even now.

Even since his by-pass surgery. Even as his heart has slowed, his voice softened, his walk slowed, his weight down by fifty pounds.

Even now his gregarious, cheerful crotchetiness makes for great dinner table company.

My friend Jim is a lovable old curmudgeon. He may yet outlive us all.

When he was a young stud he used to say that in life the one with the most toys at the end wins. He would say it again today with a wink and a smile.

That’s just the way he is.

Monday, June 7, 2010


I first got into politics in 1952 as a candidate for the Michigan State Legislature.

I filed petitions with over 2,000 signatures in order to get my name on the ballot, because I couldn’t afford the $100 filing fee.

I was a twenty-three year old law school senior with a wife expecting our first child, running as a Republican in one of America’s most Democratic strongholds.

I had no prayer of winning, but I didn’t know it. I got 60,000 votes, got nominated, got a favorable editorial, got a chance to meet Dwight Eisenhower and lost the election.

Over the next 14 years, I ran for public office seven more times, lost four, won three and ended up on the Michigan Supreme Court.

Even when I wasn’t running for office myself, I was involved in politics. I’ve spent tens of thousands of dollars and countless hours and days in political campaigns.

My Dad was a precinct delegate. He taught me that public service is noble and that political activity is the high duty of citizenship.

The one aspect of politics I found most uncomfortable was asking for money. It was painful, but necessary. Money is the fuel that runs the engine of people power. And politics is all about people power.

There are only two ways to finance political activity: get a lot of dollars from a few people or get a few dollars from a lot of people.

The danger of the first method is that government may be corrupted to serve the self interest of the wealthy few. They will expect something in return for their support. Access. Favors. Exceptions. Special treatment. Subsidies and bailouts.

The danger of the second method is that government may be corrupted to serve the self interest of the politicians. They will use the power of government itself to manipulate public opinion, get themselves reelected over and over again. Become the ‘ruling class’ with special privileges and emoluments.

You don’t have to spend too much time on the Internet these days to discover that the American people are acutely aware that both of those thresholds have been crossed in Washington D.C.

What can we do about it?

The Founders of our nation knew that it is futile to outlaw sin and selfishness.

They wisely put their trust in a scheme called separation of powers. The idea was that the self interest of any one arm of government would be throttled back by the self interest of the other branches.

The executive would answer to the legislature, the legislature to the courts, the courts to the president. The federal government could be restrained by the states, the states by each other and by the people.

Separation of powers still works better than any other system as long as all the players assert their own self interest. Unhappily over the past fifty or sixty years, the states and the people have failed to do so.

The national government has swollen exponentially. All three branches of the federal government have perceived their self interest to lie in elevating the power of the national establishment.

A rising tide, they say lifts all boats. Extending the power of the national government increases the reach of all the federal departments. So when the issue is between the states and the federal government, or between the people and the federal government, all three branches of the federal government favor whom?

They favor themselves. That’s who.

Big surprise.

All of which brings me back to my main theme: the Article V convention. It’s the one power which the Founders gave to the states to protect themselves against an overweening national oligarchy.

And it’s an easy way to get into politics. For ten bucks a month you can be the James Madison or the Thomas Jefferson of the 21st Century. It beats shaking your fist at the sky.

Saturday, June 5, 2010


I’ve been a Detroit Tiger fan for a very long time.

No, I didn’t see Ty Cobb play. But I do remember Mickey Cochrane, Tommy Bridges, Goose Goslin and Elden Auker.

As a kid on the west side of Detroit, baseball was the sport of choice. My late May birthday usually got me a new glove or ball and bat. One year a full Tiger uniform.

When my Dad got home, I would plead with him to play catch on the sidewalk in front of our house. Later I would spend hours pitching a tennis ball against the steps of the front porch.

Unfortunately the Good Lord didn’t provide me with as much talent as enthusiasm. The apex of my baseball days came in sophomore year in high school, when I tried being the catcher for a hard throwing freshman named Ray Herbert.

A couple of practice sessions with him and my left hand swelled up so much I could barely get it out of the catcher’s mitt. I decided to take up basketball. Ray Herbert went on to have a sixteen year pitching career in major league baseball.

Baseball used to be called the national pastime. It was the first really major league sport in which the players became icons for the fans, and the games were glorified and remembered as popular history.

I well remember the 1968 World Series and the impact that the heroics of Mickey Lolich, Denny McClain, Al Kaline, and the rest had on a city that just a year before had been ravaged by senseless burning and shooting.

Polly and I painted up our old station wagon and hauled all the kids out to the airport to greet the team. We were among the frenzied fools who stormed onto the landing field at Metro and prompted the Tiger plane to divert to Willow Run.

But the really great thing about baseball is the stories.

Baseball and romance. Baseball and sentimentality. Natural companions. Robert Redford as the indomitable Roy Hobbs in “The Natural”; Kevin Costner saving the farm with his “Field of Dreams.” Thousands still visit Dyersville, Iowa every year hoping to get a glimpse of Shoeless Joe Jackson.

Just a few days ago a new baseball story was written in Detroit. It will go down in history with Babe Ruth pointing to the outfield to predict a home run, or Lou Gehrig’s “luckiest man” speech or Hank Aaron’s homer that broke Babe Ruth’s lifetime home run record.

Detroit pitcher Armando Galarraga almost had a perfect game. It would have been the first in Tiger history. With two outs in the ninth, Galarraga got Cleveland shortstop Jason Donald to hit a grounder which was fielded by Tiger first baseman Miguel Cabrera. Galarraga covered the bag as all good pitchers do and beat Donald by a clean step.

Unhappily, Umpire Jim Joyce didn’t see it that way. Or hear it. Lots of umpires keep looking at the bag and listening for the ball to slap the glove. If the runner’s foot touches base before they hear the catch, their hands instantly spread in the traditional sign for “safe.”

Maybe Galarraga didn’t catch the throw dead in the pocket and the slap was muffled. Maybe the din of a near hysterical crowd drowned out the sound of the catch. Whatever. Joyce called Donald safe at first and the perfect game was spoiled.

I suppose lots of couch potato sports fans, accustomed to technology assisted officiating in football games, will shout for instant replay and even want Bud Selig to change the scoreboard nunc pro tunc.

Bad idea. Galarraga’s imperfect game will go down in history. It will overshadow all the 22 perfect games already on the books.

Joyce’s heartfelt apology, Galarraga’s mature and classy grace, Jim Leyland’s philosophical acceptance of baseball’s human dimension; these are the stuff of great baseball drama.

I predict that “The Imperfect Game” will be up for an Academy Award in 2012.

Bet on it.