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The Wall Street Journal.

Rule of Law
Trial Lawyers Target Three Michigan Judges Up for Election
May 8, 2000

By Abigail Thernstrom, a senior fellow at the Manhattan Institute.

It may be a lot to ask: persuading the public to pay attention to races other than Gore vs. Bush or Hillary vs. Rudy. Already this election season is too much with us. But voters ignore other contests, many of which are extraordinarily important, at their peril.

In Michigan, for instance, three conservative members of the state's Supreme Court—Clifford Taylor, Robert Young and Stephen Markman—are up for election. All three were appointed by Gov. John Engler to finish out the terms of justices who had resigned; now they must run on their own. For the first time in more than 40 years, Republicans are the majority on this seven-member court and they are an unusually thoughtful, sophisticated and articulate group. Can it be any surprise that the trial lawyers are determined to defeat them?

In particular, the three justices believe in leaving policy making to the representative branches of government and eschewing the creation of novel rights. With its traditional view of the judicial role, probably no court in the country has been less inclined to respond favorably to innovative theories allowing violent criminals to escape responsibility for their actions.

Unlike their recent judicial predecessors, who were reversed on at least seven occasions by the U.S. Supreme Court for extending new rights to criminal defendants, the current majority views a criminal trial as neither a legal game nor a further opportunity to tie the hands of law enforcement. If the Michigan Supreme Court can retain its current membership, it may someday exert an influence on American law similar to that of the New York Court of Appeals and the California Supreme Court of an earlier era.

The strength of the Michigan court and its precarious future revives an old question: Are popular elections a good way to decide who sits on the bench? Voters have a say in the composition of their state's highest court in Texas, Pennsylvania, California and 34 other states. What do they know when they go to the polls? Gov. Bush and Vice President Gore have numerous opportunities to counter demagogic distortions of their records and positions. This task is immeasurably harder for judges attempting to communicate fundamental jurisprudential differences over who should have the authority to make public policy decisions, and how to read statutes, constitutional provisions, deeds and contracts.

In Michigan, justices are nominated at partisan conventions but run as nonpartisans. As a result, candidates must acquire name recognition among nine million people. This is an expensive proposition in any election year, but it's all the more so this year given the trial lawyers' determination to defeat Justices Taylor, Young and Markman. Election-watchers in Michigan say each side may end up spending $5 million, which would make this the most expensive judicial race ever in this country. Trial lawyers are spending unprecedented sums. The head of the Michigan Trial Lawyers' Association has said privately that individual law firms have pledged as much as $500,000 each for the effort.

These are the class-action lawyers who live off windfalls from awards in cases involving tobacco, guns, breast implants and hot coffee from McDonald's. They advertise for plaintiffs on billboards urging potential clients to call numbers like 1-800-LAWSUIT, and assert novel theories by which traditional notions of personal accountability and responsibility can be transformed by skilled attorneys.

The lawyers' political allies already are trashing Justices Taylor, Young and Markman as "pro-corporate, anti-citizen, anti-consumer," in the words of Mary Ellen Gurewitz, counsel for both the AFL-CIO and the Democratic Party. She lists the principles that underlie the court's decisions as: "workers' compensation claimants lose, personal injury plaintiffs lose, corporations win, insurance companies win." Shortly after she made this charge, employees prevailed in three opinions interpreting Michigan's workers' compensation law—but what are the voters likely to remember: these judicial decisions or Ms. Gurewitz's charges?

Of course, playing the race card is irresistible and the three justices are also accused of being "anti-civil rights." A "factsheet" distributed by the Democratic Party charges the three with the crime of being members of the Federalist Society, a prestigious national group of conservative lawyers. This allegedly "extremist group" supports Jim Crow laws, the "factsheet" implies, and sponsors speakers who support the "elimination of constitutional rights and believe Brown v. Board of Education was wrong." This is a ludicrous description of the Federalist Society, but how many voters will know that? Similarly, the state AFL-CIO chairman has called for the defeat of the "three white men" up for re-election—a description that must amuse Justice Young, who is black.

The ugliness of this campaign is reflected in repeated statements by Democratic spokesmen and their friends that all three justices have been "bought and sold by political interests," have "politicized" the court, and are hostile to the interests of "widows and orphans" when those of insurance companies are at stake. The uglier the contest becomes, of course, the greater the likelihood that some of the dirt will rub off on the reputation of Gov. John Engler, who initially appointed them. If these candidates are defeated, many governors may conclude that conservative judicial appointments aren't worth the political grief they entail.

Many GOP governors have undertaken welfare and tax reforms, but Gov. Engler is unique in having transformed the judicial branch of state government as well. He has repeatedly stressed the connection between a growing economy and a stable and predictable rule of law. His appointments to the court reflect that conviction. As a consequence, while numerous other states, including those with Republican governors, have seen their supreme courts repeatedly strike down legislative efforts to enact lawsuit reforms, the Michigan court has deferred to the legislative will on this and other policy matters.

Gov. Engler is close to the Bush campaign, and perhaps his record will partially assuage the concerns of those Republicans who fear that a second President Bush will appoint another Justice Souter to the nation's highest court. For many conservatives, the president's power to nominate Supreme Court justices is the reason to defeat Al Gore. Given the quasi-legislative nature of much recent judicial decision making, Supreme Court appointments are arguably as important as congressional elections.

For this reason, too, the Michigan race is worth watching.

©2000 The Wall Street Journal

About Abigail Thernstrom: articles, bio, and photo


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