Monday, May 6, 2013

POLITICS IN COURT

Longer than my usual blogs, the following is a speech I gave in Detroit last week.

It has been twenty five years since then Chief Justice Dorothy Comstock Riley, God rest her beautiful soul, conceived of the idea for a society which would be dedicated to preserving and celebrating the history of the Supreme Court of Michigan.

I had then been an alumnus of the Court for more than fifteen years, and was pleased to join with Dorothy and her beloved Wally to launch this worthwhile endeavor.

And so I am especially honored to have been invited to this microphone, and asked to share some thoughts appropriate to this annual luncheon of the society.

This being an historical society, I have a few things to say about the good old days.

And maybe some thoughts about the where the Michigan Supreme Court ought to be going in the future.

Back in the eighteen nineties, my maternal grandfather, John Emmett Sullivan, ran unsuccessfully for Probate Judge in Wayne County.

Sullivan is best remembered as the Plaintiff in Sullivan v The Railroad, the oft quoted case which stands for the proposition that a lawyer who doesn’t get his money up front probably won’t get paid at all.

Judicial elections were partisan in those days. My grandfather was a Democrat.

So were all the Brennans. Except my father. He worked at the Secretary of State’s office all through the depression.

It was essentially a patronage job, and Joe Brennan was a faithful Republican precinct delegate.

I well remember wrestling on the front lawn of our house on Morley Avenue, defending our support of Landon and Knox against Roosevelt and Garner in 1936.

After law school, I was an unsuccessful Republican candidate for the state legislature, and later for the U.S. Congress against John Dingell in 1955.

When I graduated from the University of Detroit Law School in 1952, there were four lawyers named Brennan in Michigan.

Three of them were Circuit Judges.

Folks said I had a good name and should run for judge, and so I did.

I concede that the name Brennan gave me a head start, but it was hardly a simple matter of putting my name on the ballot.

I lost twice before being elected to the Common Pleas Court of Detroit by a narrow margin of 562 votes in 1961.

Campaigning for judge in Detroit in the late 1950’s and the early sixties taught me that most folks vote for judges on the basis of personal knowledge and recommendations.

Name recognition is important, of course, but mostly because it carries ethnic or religious identification.

I was welcomed at candidate meetings of both political parties.

I well remember the day I campaigned on twelfth street behind the popular democratic Governor, G. Mennen – Soapy – Williams.

I was tagging along with the Governor and a coterie of his judicial appointees.

We came to a drug store which had one of those old fashioned soda counters.

Soapy waded in and shook hands all along the counter, and I followed.

One very large, very black lady took my campaign card and studied it carefully.

Finally she asked me, “Aren’t you the Republican?”

I gulped and said, “Yes Ma’am.”

She looked up from the card with a big smile and said, “Well, you all right!”

I campaigned in black churches, once even preaching on Palm Sunday.

I campaigned at the Dompolski Hall, where I learned how to say, “dobry wiecz√≥r, panie i panowie.”

And of course, I campaigned among the Ancient Order of Hibernians, the Friendly Sons of Saint Patrick and the Thirty-Two Counties of Ireland Club, which sponsored a dance every week to raise money for Sister Mary Claire.

I never met Sister Mary Claire.

I always suspected it was a code name for the IRA.

When Governor Romney asked me to run for the Supreme Court in 1966, I was a little worried about accepting the Republican nomination.

I was part of the County Building crowd, the Irish Murphia as it was known.

Running against Thomas Matthew Kavanagh, the quintessential Irish Catholic, Knights of Columbus Democrat, and Otis Smith, the first person of African heritage to be elevated to the Supreme Court, was not exactly a way to build up a political base in Wayne County.

Still, it was a great honor for a 37 year old lawyer.

Governor Romney had appointed me to the Circuit Court. My kids called him “uncle George from the job.” There was no way I could turn him down.

But I did do something that, to my knowledge, no other person nominated for a public office by a partisan political convention has ever done.

In my acceptance speech, I paraphrased a famous line by New York Mayor Fiorello LaGuardia.

LaGuardia was his own man. He made that clear when he said, “My only qualification for public office is my monumental ingratitude.”

I liked that line.

I told the delegates to the Republican convention of 1966 that my only qualification for their partisan nomination was my monumental non-partisanship.

They put me on the ballot anyway.

So I went off on a lonely sixty thousand dollar campaign that no one, least of all my family and I, thought would be successful.

As it turned out, I ran second to Chief Justice Kavanagh, and defeated Otis Smith, probably the nicest, gentlest human being ever to grace the Michigan Supreme Court.

Otis and I became good friends.

He did me a great favor by asking me to retain his secretary, Mary Lou Shepherd.

And he always credited me for getting him a job at General Motors.

His salary as General Counsel was probably more than the whole Supreme Court.

It was during that campaign in the summer of 1966, that I began to learn something of the partisan in fighting that soils the linen of the Supreme Court.

In my campaign speeches, I criticized the Chief Justice for permitting the published opinions of the Court to be sullied by personal bickering among the Justices. Particularly between Justice Theodore Souris and Justice Eugene Black.

I felt that such wrangling was unseemly and that the Chief Justice should have been able to tone it down.

My criticism of the Chief piqued the interest of Justice Black and he began to call me regularly to egg me on.

Eugene Black was an interesting character. A self-educated lawyer, he spent one day at the Detroit College of Law, concluded that it was a waste of time, and went home to Port Huron to intern in a law office until he could sit for the Bar Exam.

He had been elected Attorney General of Michigan in 1946 as a nominee of the Republican Party. And in 1956 he was nominated for the Supreme Court by the Democratic Party.

When I won the election, Gene Black gleefully insisted that I should be a candidate for Chief Justice.

On January 1st, 1967, there were still eight members of the Court. The provision of the 1963 Constitution, reducing the Court to seven members would not take effect until Ted Souris retired the following year.

The Court was split down the middle.

Chief Justice Kavanagh, and Justices Paul Adams, Ted Souris, and Gene Black were nominees of the Democratic Party.

Mike O’Hara, John Dethmers, Harry Kelley and myself were Republicans.

Black insisted that if I could line up the Republicans to support me, he would cast the deciding vote in my favor.

I kept telling him I was too young, and insisting that Mike O’Hara should take the job.

The night before the first meeting of the Court which I attended, I closed the bar at the Jack Tar Hotel trying to persuade Mike O’Hara to accept the Chief Justiceship.

The best I could get from him was a promise to think about it.

At four in the morning he called to say that he couldn’t do it.

About eight hours later, to his shock and amazement, John Dethmers was returned to the office of Chief Justice.

In 1968, Mike O’Hara was defeated by Thomas Giles Kavanagh.

So now there were two Tom Kavanaghs on the Court.

We had to use their middle names. Matthew and Giles. TG and TM. Thomas the Good and Thomas the Mighty.

So in January of 1969, the Court was reduced to seven members.

There was a 4 to 3 Democratic majority, but one of the Democrats was the maverick Gene Black who wanted me to be Chief Justice.

So I was elected, at age thirty nine, the youngest person to hold that office.

Two years later John Dethmers and former Republican Governor Harry Kelley were replaced by two former Democratic Governors, G. Mennen Williams and John Swainson.

And that was the end of what I like to call Michigan’s judicial Camelot.

Certainly there was partisanship on the Court as I’m sure there had been for more than a hundred years before I came there.

It mostly had to do with who was chosen Chief Justice.

And of course, in classically partisan issues like reapportionment.

But the revolution of judicial activism that began with the appointment of Earl Warren as Chief Justice of the United States in 1953 had only begun to trickle down to the state courts when I was on the bench.

The unapologetic assertion by judges and academics that it is the proper function of courts to look for emerging public consensus and then declare new rights and new obligations, has spawned a novel and disturbing kind of partisanship in our courts.

Deciding cases and controversies between litigants has given way to weighing in on hot button political and social issues.

That infection has metastasized from Washington D.C. to Sacramento, Albany, Harrisburg, Columbus, Lansing and elsewhere.

As a result, a judicial campaign that cost less than twice a year’s salary in my day is now tallied in the millions, even tens of millions of dollars.

Money begets power and power begets money.

That’s why partisan politics is all about money.

But referees and umpires do not wear the uniforms of the contesting teams, and judges ought not to be labeled as adherents to any political party.

They shouldn’t think of themselves in partisan terms, and they shouldn’t act that way.

Recently a distinguished committee headed by former Justices Jim Ryan and Marilyn Kelly wrestled with the long percolating problem of judicial selection at the Michigan Supreme Court.

After much study, discussion and debate the committee recommended the adoption of a non-partisan Primary Election for the Supreme Court just as we have for the Court of Appeals and all of the trial courts.

It’s a simple change.

Doesn’t require a constitutional amendment.

It can be done with ordinary legislation.

I urged it more than forty years ago as Chief Justice.

The State Bar endorsed the idea long ago and still supports it.

If I had not resigned in 1973, I would have had to run for reelection in 1974. I had already given a great deal of thought about what I would do in that election year. My plan was rather simple.

My strategy was to go to both the Republican and Democratic conventions and ask for their endorsement and support, but to refuse to be nominated by either party.

The constitution permits an incumbent Justice to get on the ballot by filing a simple affidavit of intent to be a candidate.

That is what I would have done.

It was not an entirely idealistic thing to do.

As I saw it, only one of three things could happen.

If neither party nominated a candidate, I would have been reelected without opposition.

If both parties nominated candidates, it would have been a three way race in which I would be designated on the ballot as the incumbent, a very favorable situation.

And if only one party nominated a candidate, I would effectively become the candidate of the other party, with the additional benefit of having made a friendly overture to the party of my opponent.

Moreover, I would have had, in either event, a solid issue on which to campaign: keeping the Court out of politics.

I believe that with the publication of the Ryan-Kelly Committee Report on Judicial Selection, it is time for the Supreme Court of Michigan to step up and do something.

It is time for the Supreme Court to dig itself out of the ditch of partisan politics.

I urge the Justices to adopt a sense of the Court resolution, asking the political parties to refrain from nominating candidates to oppose incumbent Supreme Court Justices, and expressing the unanimous commitment of the seven members of the Court to rely only on the constitutional affidavit of candidacy in future elections.

I believe that such a resolution would be met with widespread, if not universal public support.

It would be trumpeted as a decision to take the Court out of partisan politics, to make the Court truly non-partisan.

It would bolster the public image and prestige of the Michigan Supreme Court in a way that no other single action can do.

It would announce to our profession and to the public, that in the Michigan Supreme Court, the Party is over, and a new era of non-partisan jurisprudence has dawned.

That action would trigger serious discussion and action in the legislature to create a non-partisan Supreme Court Primary election.

Experience shows that competent judges are hardly ever opposed in non-partisan primaries.

If a judge enjoys favorable repute among the lawyers, they leave him or her alone at election time.

Not true in the Supreme Court with party nominations.

The roster of able, dedicated and accomplished Supreme Court Justices who have been defeated at the polls is long and unhappy.

That roster includes the great Justice Thomas McIntyre Cooley who was defeated largely through the efforts of the Detroit News against which he had ruled in a libel case. In my time, it includes Clark Adams, Otis Smith, Paul Adams, Mike O’Hara, John Dethmers, and Thomas Giles Kavanagh. More recently, Larry Lindemer, Alton Davis and Chief Justice Cliff Taylor were voted out.

By contrast with all of that political blood letting, no incumbent Judge of the Michigan Court of Appeals, to my knowledge, has ever been defeated at the polls.

The sense of the court resolution which I recommend, would not only burnish the reputation of the Court. It would effectively safeguard the tenure of incumbent justices.

It would relieve them of the distasteful groveling associated with nitty gritty political campaigning.

Most important, it would get them out of fundraising.

It would get them out of the unholy business of asking for money.

And remembering who gave and how much they gave.

That resolution would not make Michigan’s high court the most non- partisan in the land.

We would still have unfettered gubernatorial appointment to fill vacancies.

The 1963 Constitution, before it was amended, abolished gubernatorial appointments and required that vacancies be filled by non-partisan election. Retired judges would fill in until a successor was elected.

Unfortunately, there weren’t enough retired judges and gubernatorial appointment was reinstated.

There isn’t any perfect system.

Everybody is somebody.

We all have our own predilections, prejudices and preferences.

But a wise public policy should try to lower the odds. That’s what Jim Ryan and Marilyn Kelly and their distinguished committee tried to do.

They came to the conclusion that, in a republic, courts need to have the acceptance and approval of the people.

Judges have no armies and courts have no taxing power.

The heartbeat of the judicial system is the confidence of the people.

The people of Michigan want to elect their judges on non -partisan ballots.

It’s the right thing to do.

And it’s time for the sitting justices to take the lead.

The honorable Charles Levin is the only person still living with whom I served on the Michigan Supreme Court.

He has the distinction of being the most non-partisan member of the Court.

He formed his own party, held a convention in his basement and got himself nominated.

We didn’t agree on many things when we sat together, but I will venture a guess that he supports the recommendation of the Ryan-Kelly committee.

Perhaps he would even concur – separately, of course – in my advice to the sitting justices.

In any case I will relish debating it with him.

For that opportunity and for everything else it has done in twenty-five years, I thank the Society and especially its distinguished President, and my dear friend, Wally Riley.

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