Sunday, January 30, 2011


In December,1982 the Supreme Court of Michigan was in a state of flux. The seats were being emptied and filled like a children’s party game. But without the music.

John Fitzgerald, son of Depression era Governor Frank Fitzgerald was appointed in 1974 and elected to a full eight year term that autumn.

A scholarly gentleman and a popular teacher, John was instrumental in the organization of the Thomas M. Cooley Law School and very much enjoyed the interchange with students.

So he decided not to run for reelection in 1982. In December, he was living out the last days of his term.

Mary Coleman, unexpectedly announced her retirement after serving only two years of an eight year term.

Despite the pleas of some around the table, she decided to resign effective December 27 so that outgoing Republican Governor Bill Milliken could appoint her replacement.

She did and he did, sending his Lieutenant Governor, one time President of Eastern Michigan University, James H. Brickley to the court.

Four days later, newly elected Justice Michael Cavanagh would be sworn in. And of course, there was Blair Moody’s replacement, Dorothy Comstock Riley.

The partisan count was back to three against three. And Levin.

For a veteran of the political wars like G. Mennen Williams, the world had turned upside down. Blair Moody had been elected in a landslide. His seat belonged to the Democrats. Dorothy Riley had been specifically rejected by the voters in the same election.

The people had just elected a Democratic Governor. To Soapy, that meant that the people wanted a Democrat to be making judicial appointments. Milliken was finished, living out the last days of his term. He had no mandate. He had no business making last minute appointments that would determine the course of the Supreme Court for years to come.

It wasn’t right. And Soapy knew right from wrong.

So would Frank Kelley.

Frank had been the state’s chief law enforcement officer for so long he was known as the Eternal General of Michigan.

A Democrat down to his socks, Kelley would surely agree that the Riley appointment didn’t pass the smell test.

Of course, he would have to admit that the warrant of appointment from Governor Milliken said Riley was to serve until January 1, 1985, after a successor to Justice Moody was elected in 1984.

That’s what the letter said. And that’s what the constitution said.
“…until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs…”

But words in a constitution are sometimes ambiguous. Sometimes they need explaining by smart lawyers and top notch law clerks.

In those days, the Supreme Court maintained a suite of offices in the Lafayette Building in downtown Detroit. Soapy had an office there. That’s where they put Dorothy Riley.

Around Christmas time, Dorothy told her husband that her clerk had found some interesting things in the waste basket next to the copy machine.

Draft copies of a brief arguing for her removal.

They were going to try to get her off of the court.


In January of every odd numbered year, the justices of the Michigan Supreme Court elect a Chief Justice.

That’s because in November of the even numbered years one or two of the justices are up for election, and if the court personnel changes, there just might be a new leader.

It wasn’t always that way. For about a hundred years prior to 1956 the justices rotated the job.

Chuck Levin often suggested that they go back to the old way. You can’t blame him. As the only real independent on the court, rotation was about the only way he would ever get to sit in the center chair.

From 1971 until 1975, Justice Thomas M. Kavanagh was the Chief. We used to call him Thomas the Mighty. In January of 1975, he was succeeded by his namesake, Thomas Giles Kavanagh. Thomas the Good.

By 1977, the political complexion of the court had changed. Now there were three Republicans, three Democrats, and Levin. Giles Kavanagh was reelected Chief Justice.

Soapy was still waiting. Blair Moody, Jr. was solidly in his corner. His father had been appointed United States Senator by then Governor Williams.

Then came the rebellion of 1979.

Kavanagh decided to step aside as Chief Justice, but not in favor of Soapy. He and Chuck Levin jumped ship to install Mary Stallings Coleman. The first woman elected to the court now became the first woman to be chosen Chief Justice by her colleagues.

As liberal as Soapy was, and as committed to women’s rights, Coleman was still junior to him. And he wasn’t invited to the restaurant where the decision was made.

So he waited.

In November of 1982, when Democratic nominee Michael Francis Cavanagh was elected, to succeed Republican John Fitzgerald, Soapy could count four votes, even without Justice Levin.

Now it would be Soapy’s turn to lead. The middle chair would be his. He had earned it. He deserved it. He wanted it.

And this time, he would have it.

Being Chief was important to him. Twelve years in the Governor’s mansion gave him unique experience as an executive. He knew how to get things done, how to manage people, how to inspire them, how to use them.

The state provided each justice with a law clerk. Soapy wasn’t satisfied. He hired two more clerks with his own money. He would hold meetings, delegate tasks, synthesize their efforts.

His opinions had the ring of executive white papers. He would argue with eloquence what he believed to be the right thing to do. If the precedents didn’t easily line up with his view of justice, he marshaled his considerable intellectual powers and the help of his staff to get where he wanted to go.

Then the unthinkable happened.

On the day after Thanksgiving, after celebrating and giving thanks with his wife and five children, Blair Moody died.

On December 9, 1983, Republican Governor William Milliken appointed Dorothy Comstock Riley, who had lost by a quarter of one percent of the vote to Mike Cavanagh two weeks before, to fill the Moody vacancy.

Saturday, January 29, 2011


Everybody called him ‘Soapy.’

His real name was Gerhard Mennen Williams. His father was a minister, his mother CEO of the Mennen Company which manufactured shaving cream and other toiletries.

As a boy, he had been sent to a ranch in Wyoming one summer along with his two brothers. The cowboys nicknamed them Suds, Lather and Soapy. Soapy stuck.

Soapy was from Grosse Pointe. The old Grosse Pointe, before it was overrun with newly rich automobile makers.

At age 14, he was shipped off to Salisbury prep school in Connecticut, where he was seen as an oddity: a Midwesterner with breeding. At Salisbury, Soapy earned the highest grade point average of any student, before or since.

Then it was off to Princeton in 1929. There he skied, wrestled, played basketball, rowed on crew, won two varsity football letters, made Phi Beta Kappa, and….

And was elected president of the Young Republicans.

At the law school of the University of Michigan in the mid 1930’s, the talk was all about the New Deal. Idealism was the mood of the day. Utopia was on the horizon.

Soapy was converted. He became a Democrat. He would go into politics. He would make a difference.

His rise in Michigan politics was meteoric. The protégé of Governor Frank Murphy, he was on the inside track even before enlisting in the Navy, where he earned 10 Pacific battle stars and the Legion of Merit, mustering out in 1946 as a lieutenant commander.

By the summer of 1948, as the Democratic nominee for Governor of Michigan he made his national television debut as a feisty opponent of the Dixiecrats at the national convention.

Always a great campaigner, his enthusiasm for pressing the flesh was matched by his knack for calling square dances. The unions delivered the big cities, while Soapy charmed the farmers and the small town Republicans.

And he won. At a time when Michigan governors served two year terms, Soapy amassed six consecutive victories from 1948 through 1958.

On September 15, 1952, the cover of Time magazine featured the handsome face of Soapy Williams, his patented green polka dot bow tie, broad toothy grin and steely blue eyes surrounded by champagne bubbles.

The cover story called him a prodigy and recounted how people had predicted he would one day be President of the United States.

In fact, he went to the 1952 Democratic convention at the head of a Michigan delegation which had adopted him as its favorite son. When the choice came down to Illinois Governor Adlai Stevenson or Tennessee Senator Estes Kefauver, Williams and Michigan opted to support the Senator.

Perhaps he thought he had a better chance of being tapped for Vice President by someone who didn’t come from just across Lake Michigan.

He served his country and his party in various capacities during the Kennedy years.

Finally, he decided to cap off his career as a Justice of the Michigan Supreme Court. He was elected in 1970.

I first met Soapy Williams in 1959. I was hosting an Irish fundraiser on Saint Patrick’s Day to boost my unsuccessful campaign for judge in Detroit. Soapy stopped by to greet a group of Young Democrats who were gathering down the hall, and I went down and invited him to come and meet our people.

He came, was gracious, and made a big hit.

We served together on the court for three years from 1971 through 1973. I found him to be a warm and thoughtful colleague.

More than that, he was a man of sound morals, dedicated and committed to public service. He was a leader in the classic Protestant mold; ambitious for power and authority, but solely for the purpose of doing good as he saw it.

Soapy was a good man and he knew it. Being conscious of his own rectitude gave him a certain messianic determination to be the boss.

In the Supreme Court that meant being Chief Justice. And Soapy wanted it.


Used to be, judges were either Republicans or Democrats in Michigan.

Then along came 1932. Franklin Delano Roosevelt was elected President of the United States by a wide margin. Michigan went Democrat big time.

Not everyone was ready for it. A couple of old time Dems woke up to find that they had been elected to the office of State Representative and bought railroad tickets to Washington D.C. instead of Lansing.

One group that got a rude awakening was the judges. Michigan had been a Republican state and most of them were staunch members of the majority party. But in the 1932 landslide, a number of incumbents were ousted.

What to do?

Change the constitution. Make judges non partisan. Give incumbent judges the benefit of a designation on the ballot that would let the voters know who they were.

The system has worked pretty well. Incumbent judges and their challengers are welcome in the halls of both political parties, and while the “us and them” mentality of American politics is still at work, there is a certain aura of civility associated with non partisan elections which is suited to judicial office.

The one exception is the Michigan Supreme Court.

Unhappily, when the constitution was amended to make judicial elections non partisan, it left the matter of nominating candidates for the Supreme Court to the legislature.

And what did they do?

They did what legislatures do best. Nothing. They did nothing at all. They simply left the matter of nominating candidates for the Supreme Court the way it was under the old, party convention method.

So while candidates for the Supreme Court are rotated alphabetically on the non partisan ballot, they must first be nominated by the political parties.

And they never forget it.

Even when, as incumbents running for reelection, they are entitled to get on the ballot by a simple affidavit nominating themselves, they still go back to their party conventions. That’s where the money is.

As a result, justices of the Michigan Supreme Court are commonly regarded as Republicans and Democrats. And they tend to act that way.

Back in 1982, the court consisted of four Democrats, two Republicans, and a maverick.

The maverick was a man named Charles Levin.

His father had been a federal judge in Detroit. Two cousins, Sander and Carl were successful members of the United States Congress. Both Democrats.

But Charles never got into partisan politics. He wanted to be a judge like his father. So he ran for the Court of Appeals, where candidates are nominated by circulating petitions.

He was elected, served several years and then decided to run for the Supreme Court. He couldn’t get the nomination of the Democratic Party so he circulated petitions and started his own party, held a convention in his basement and got himself nominated.

And was elected.

The Democratic majority on the Supreme Court back in 1983 did what majorities always do. They elected their own guy as Chief Justice.

His name was G. Mennen Williams.

He would preside over the Supreme Court of Michigan on the darkest day in its history.

Wednesday, January 12, 2011


The United States of America is a Union of fifty sovereign states.

It is the duty of our federal government to represent our Union and to protect the states from incursion by foreign nations.

That’s not what’s happening in Arizona. The forty-eighth state of our Union is being sued by our federal government.

And if that were not bad enough, our federal government is now joined by eleven foreign countries to gang up on the State of Arizona and undo a law passed by its legislature and signed by its Governor, Jan Brewer. A law intended to protect her constituents from a tide of people entering the State in violation of federal immigration laws.

That’s right. The New York law firm of Dewey & LeBoeuf has filed an Amicus Curiae brief on behalf of the nations of Mexico, Argentina, Bolivia, Brazil, Chile, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay and Peru protesting the new law which seeks to protect the citizens of Arizona from the hostile invasion of illegal immigrants.

I haven’t researched this point, but I must confess that the idea of the Federal government suing to declare a state law unconstitutional, strikes me as a pretty big stretch of the powers delegated to the politicians and bureaucrats in Washington D.C.

If the Arizona law is unconstitutional, someone who is affected by the law, and who therefore has a right to challenge it, will surely do so, and the courts will have their proper jurisdiction.

But the United States Constitution gives the federal courts authority only to hear actual cases and controversies. There is no such thing as an advisory opinion in a Federal Court.

U.S. v Arizona is essentially a political debate. It is an abuse of process to start a lawsuit just to get publicity or to influence public opinion.

If you’re getting the idea that I don’t have much regard for Mr. Holder’s lawsuit, you’ve got it right.

But it strikes me that there is a larger issue here.

Larger even than the unhappy business of our Department of Justice being used to wage political war against the sovereign State of Arizona.

By what right, by what precedent, by what modicum of decency should foreign nations be permitted to gang up on a State of the American Union?

Our fifty states have a lot of differences to be sure.

We’ve got red states and blue states, and lots of shades of purple states.

But when our Union is attacked, when outsiders come in and try to mess with one of our sister states, we are, as we must be, united. Shoulder to shoulder. One for all and all for one.

Amicus Curiae is a Latin term for Friend of the Court. A brief Amicus Curiae is a brief filed by someone who is not a party to a lawsuit, usually someone who feels that the outcome of the lawsuit will affect them in some way.

Courts don’t allow just anyone to file an Amicus Curiae brief. The trial judge or appellate panel must conclude that an Amicus Curiae brief will be helpful; that it will present arguments or perspectives which may not otherwise be considered.

While you don’t have to have an actual dog in the hunt, you do have to have something to say about it that will help the court.

I ask myself, should all those South and Central American nations have something to say about illegal immigration into the State of Arizona?

If the laws of Arizona are in fact contrary to the constitution of the United States, what business do Argentina and Bolivia and Paraguay have to complain?

If a citizen of Nicaragua is detained in Phoenix, whether legally or illegally, there are standard diplomatic channels for the Nicaraguan government to pursue.

An illegal immigrant, as much as any other defendant faced with criminal charges has a right to counsel and a constitutional right to a speedy and public trial. If the law under which he or she has been charged is unconstitutional, that defense can be raised. But the defendant’s native land is not a party to the case.

When we punish illegal immigrants who violate our laws, we are not making war against their native lands. When they enter our shores, whether legally or illegally, they become subject to the jurisdiction of our courts and the enforcement of our laws.

The involvement of foreign governments in our immigration dispute is a terrible thing. To permit foreign powers to inveigh against a State of our Federal Union, is to tolerate a state of hostility.

It is time for the other forty-nine States of the American Union to stand up and be counted.

It matters not whether they agree with Arizona, or approve of the statute in dispute.

But no State worthy of the title sovereign can stand by and let these foreign nations invade our courts to do battle against one of our sister states.

I intend to send this blog to the Attorney General of every State and urge them to file Amicus Curiae briefs opposing the participation of foreign governments in U.S. v Arizona.

I ask all my readers to join me in this effort.

It’s time for us to defend the Union.

Sunday, January 9, 2011


The Sixth Amendment to the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Constitution doesn’t say that the public are also entitled to a speedy trial. Maybe the Founders felt that public outcry would be enough. Or maybe they thought that public officials could be counted upon to carry out their sworn duty to enforce the law.

The Founders didn’t know Eric Holder.

Nidal Hasan murdered thirteen people in Texas on November 5, 2009. Fourteen months later our impotent federal bureaucracy hasn’t even decided whether to court marshal him, or if so, when.

I have a hunch that if Hasan had been left to the tender mercies of the Bell County Sheriff and Prosecuting Attorney he would have long since been convicted by a “jury of the State and district wherein the crime shall have been committed” as required by the Sixth Amendment.

Khalid Sheik Mohammed was arrested on March 1, 2003. He has yet to be brought to trial, despite confessing to have launched the 9-11 attack on the United States.

These are some of the thoughts that passed through my mind when Shepherd Smith revealed that the Federal Bureau of Investigation had taken charge of Jared Lee Loughner, the deranged 22 year old man who shot Congresswoman Gabrielle Giffords in the head and murdered Federal Judge John M. Roll and five other people.

Is it unduly cynical to fear that the Feds will dink around with the case while political hucksters write stories about the danger to our nation posed by right wing extemists?

At least until after the 2012 elections.

Christina Taylor Green, the nine year old girl murdered yesterday in Tucson, was born on September 11, 2001, and lived from slaughter in New York to slaughter in Arizona.

I doubt that her killer will ever be tried, convicted, sentenced and executed under Arizona law.

It’s a damn shame.

How sad it is that, in our age of information and opinion overload, the wheels of justice get bogged down in a mud slide of commentary and analysis.

The simple issue of fact, whether a crime has been committed and who did it, is somehow overshadowed by all the conversation.

The focus on understanding why the crime was committed and trying to assure that it doesn’t happen again gets all the media attention.

Bringing the perpetrator to justice goes on the back burner.

To my old fashioned way of thinking, swift and certain punishment is still the most effective way to deter crime.

The idea that we can somehow, through education, media attention, bodyguards, technology, video cameras, xrays, scanners, trained dogs or psychiatric profiling, prevent future massacres like Tucson or Fort Hood is a fools mission.

There is human evil in the world, just as surely as there are hurricanes and tornadoes

As long as human beings have free will, they have the potential to do evil. No right thinking man or woman would surrender the faculty of their free will in exchange for protection from danger.

Nor would we tolerate the mutation of human brain waves to assure robotic obedience to authority.

So we have to live with mad men and bad men. With insanity and vice.

The opposite of vice is virtue. The antidote for sin is hellfire and brimstone.

A peaceful, just and secure society can only be built on morality, and morality can only proceed from religion.

It is the office of religion to teach the difference between right and wrong. To develop a moral compass. To encourage the intellectual function we know as conscience.

When we chisel the Ten Commandments off of the keystone above the courthouse door, we sever our ties with the Judeo Christian culture that informed our ancestors’ notion of right and wrong.

Then what do we have?

No more “Thou Shalt Not Kill?”

Of course not. Someone might be offended.

How about a Presidential Study Commission on the Causes of Terrorism in Modern Society?

Just the kind of hand wringing thing our federal government does so well.

I can’t wait.

Sunday, January 2, 2011


Back in 1982 a student at the University of Texas, researching the federal constitution for a term paper, stumbled onto a constitutional amendment proposed by the Congress in 1789, but never ratified by the states.

There was no deadline for ratification in the proposal, so Gregory Watson wrote his paper arguing that the amendment could still be ratified.

He got a “C.”

The professor thought it was just ridiculous to suppose that a proposal that was advanced by Congress 193 years before was still active.

Watson disagreed.

To prove his point, he started writing letters to the state legislatures. Within a year, Maine ratified the amendment, then Colorado. In 1992 Alabama became the 38th state to ratify and the 27th Amendment was born.

The Professor still refused to change Watson’s grade.

Here’s what the 27th Amendment to the United States Constitution says:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

In short, it prevents members of Congress from feathering their own nests; giving themselves a pay increase. They have to go back to the voters and get reelected before their paychecks are sweetened.

At least that is what everybody who worked to get the 27th amendment ratified believed.

But you gotta hand it to those Congressmen. Where there’s a will, there’s a way. They had plenty of will, so they came up with a clever way. They adopted COLA for themselves. COLA; that’s short for Cost Of Living Adjustment. Just like the unions.

Talk about clever. They included their COLA in a law they called The Ethics Reform Act of 1989. They could see the ratification of the 27th Amendment coming.

Apparently, they thought the ethical thing to do was to hurry up and give themselves an automatic annual raise before the 27th Amendment became the law of the land.

Oh, and by the way, the computation of their COLA included the provision that the annual adjustment could never be less than zero. Up every year, but never down.

To his credit, Gregory Watson didn’t give up. He and a few others brought an action in federal court to challenge the congressional COLA as a violation of the new 27th Amendment.

A federal District Court Judge in Colorado decided that the COLA, having been adopted before the amendment, was perfectly all right.

Watson and friends appealed to the United States Circuit Court of Appeals. The appeals court said they couldn’t take the case, because the plaintiffs didn’t have ‘standing’ to complain. The United States Supreme Court agreed, and refused to hear the case, too.

It’s a sad story. The general public was, and still is, overwhelmingly in favor of limiting the power of the politicians to increase their own compensation.

But what about COLA? Should their salaries by increased to reflect the cost of living?

Most Americans like COLA. They figure inflation isn’t their fault. They see their buying power going down, their savings shrinking in value, and they want to make more money to keep up.

But the first premise doesn’t apply to members of Congress. Inflation is their fault. The devaluation of currency is their fault. The cheapening of the dollar is the direct consequence of wild and irresponsible spending by the government in Washington.

I believe that the compensation of members of Congress should be spelled out in the Constitution. In dollars and cents. No adjustments. No power to give themselves or their successors a raise.

Why? Very simply because the Constitution of the United States gives the Congress the exclusive power to coin money. The power to coin money carries with it the responsibility to assure that the money which is coined is a stable and reliable medium of exchange.

Inflation is the most regressive form of taxation. It takes from the rich and poor alike. It impunes every contract. It invades every savings account.

How does it make sense to protect members of Congress from the inflation which they, themselves, have suffered to be visited upon their constituents?

If the compensation of members of Congress is fixed, their personal self interest will best be served by legislation which protects and even enhances the value of the dollar.

Fixing the compensation of members of Congress is an important first step in establishing a balanced budget and retiring the national debt.

And while we’re about it, we ought to close off another avenue of self aggrandizement. The House and Senate should be forbidden to pay extra money to the Speaker of the House, the President Pro Tem of the Senate, the majority and minority leaders of both houses and the chairmen or members of any committee.

It’s time to remind elected officials that they are public servants and not rulers.