2005-05-13 / Columnists

Putting Michigan Judges on the Bench

Michigan Politics By
George Weeks


George Weeks

It might be time for some deal cutting in Lansing on the issue of ballot propositions. Some ideas from the only Michigan Supreme Court justice from northern Michigan could be part of the mix.

Governor Jennifer Granholm wants the GOP-ruled Legislature to put on the November 1 ballot her $2-billion bond proposal to help lure high-tech industry to Michigan. She faces a tough sell.

Republicans need more Democratic support to allow voters to decide on a constitutional amendment – favored by this scribe – to give the governor, rather than the obscure State Board of Education, power to name the state school superintendent.

The House, including all 58 Republicans, voted 72-32 last week to put it on the ballot but that fell short of the needed two-thirds vote.

There also are stirrings in Lansing for ballot propositions to extend term limits for state representatives from six to eight years, and to provide for gubernatorial filling of Supreme Court vacancies to be subject to Senate confirmation.

When Justice Betty Weaver of Glen Arbor stunned fellow Republicans in January by announcing she intended to step down in October, even though she's not up for re-election until 2010, the ex-chief justice said: "Michigan should re-work its system so that Supreme Court justices' term limits are shorter and the representatives' and senators' terms are longer. ... I intend to put my money where my mouth is and step down …after over 10 years on the court."

An October departure would give Granholm her first appointment to the seven-member court that now has only two Democrats.

Subsequently, Republican leaders have urged Weaver to at least delay her departure, and there's good reason to believe that some are willing to work with her on developing constitutional amendment changes on how justices are selected, possibly as a package proposition on term limits.

Although Weaver declines comment on what's afoot, it's a solid bet she'd stay on longer if there's a serious effort at reform, especially on how Supreme Court vacancies are filled. In giving notice in January, she expressed hope that Granholm, lawmakers, and others "will think about and act upon" change.

In March, Michigan Lawyers Weekly asked Chief Justice Cliff Taylor, not a Weaver chum, what changes he'd favor. He replied: "About 10 years ago, I wrote an article in which I argued that a preferable system would be to allow the governor to appoint appellate court judges and justices – subject to Senate confirmation – for a single 14-year term. No re-appointment. No elections.

"Such a system would not only create an independence among the judiciary, but it would liberate judges from the stresses of having to run for re-election, thus allowing them to more fully devote themselves to their work."

Northern Combatants of Yore

Democratic Senators Carl Levin and Debbie Stabenow are key players in the current dust-up over a threatened judicial filibuster on seven of President Bush's federal appeals court nominees, including Michigan Court of Appeals Judge Rick Griffin of Traverse City.

But their roles are not as pivotal and high profile as those that Michigan's two senators played in 1968 during what has been widely described as the first successful – and so far only – judicial filibuster in the Senate.

Republican Sen. Bob Griffin of Traverse City (father of Rick) and Democratic Sen. Phil Hart of Mackinac Island were, in fact, point men for opposite sides in the stalemate that blocked President Johnson's nomination of Justice Abe Fortas to be chief justice of the U.S. Supreme Court.

Griffin made the first speech opposing Fortas and led a coalition of Republicans and Southern Democrats against the nomination. While some opposed Fortas' support of civil rights, Griffin and other Republicans primarily focused on what Griffin argued was that Fortas "had no recognition of the separation of powers" between the executive and judicial branches – and essentially was a Johnson adviser.

Some argued that there technically was not a vacancy because Chief Justice Earl Warren had advised Johnson of his intention to retire, but had not yet done so.

Arguing that it was not a filibuster, Griffin said, "All we wanted was ample time" to present arguments.

After four days of debate, there was a cloture vote to end it. The pro-Fortas forces won a 45-43 vote, but that fell far short of the two-thirds vote needed to invoke cloture. Fortas then asked Johnson to withdraw the nomination. The next year Fortas resigned from the court under pressure of allegations of improper outside financial ties.

According to the Congressional Record for the day after the cloture vote, Griffin bristled at a Washington Post editorial that a "willful minority" prevented advancing Fortas to a full vote on the floor.

Griffin noted that the votes of 12 senators were not recorded – seven of whom, according to the Congressional Record, indicated how they would have voted had they been present. He said, "There would have been 47 votes for cloture and 48 votes, or a majority, against cloture." But, of course, such matters are not decided by "wudda, shudda."

Although the late and much-beloved Hart was the major carrier of the Senate fight for Fortas, he later came to believe that Fortas did, indeed, have improper outside financial ties.

Ironically, after withdrawing the Fortas nomination, Johnson considered nominating Hart. As Hart biographer Michael O'Brien wrote in 1995: "Rather than let the chief justice nomination fall to his successor, Johnson decided to send to the Senate the name of a man the Senate could not refuse, one of its own members who held the esteem and respect of everybody: Phil Hart. Johnson sent out the appropriate feelers."

According to O'Brien in Philip Hart: The Conscience of the Senate from Michigan State University Press, Hart said, "I sent back word – thanks, but no thanks. So there never was a formal offer. I said I was comfortable in the Senate."

Griffin says, "There's no question he would have been confirmed." He also says there's no question that Fortas was "the worst possible nominee (Johnson) could have put up."

George Weeks is the political columnist for The Detroit News and is syndicated by Superior Features.

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