Rick Snyder is about to become the first governor in Michigan history to single-handedly appoint a four-member majority on the state Supreme Court, and he will have done it in just his seventh year in office.
The only other governors with as many appointments to the high bench as Snyder were William G. Milliken and G. Mennen (Soapy) Williams, but it took them 14 years and 12 years, respectively, to get the job done. Furthermore, neither Milliken nor Williams was ever able to point to a court where all their appointees were serving at the same time. In Williams’s case, a couple of his record five appointees were named to replace other justices whom he had earlier appointed. Milliken made five appointments to the Court, but whether one of them — Dorothy Comstock Riley — should be counted is a matter of dispute, because the Court itself ruled that her appointment had been unconstitutional. She was later elected to the Court in her own right and later served as Chief Justice.
Snyder’s new opportunity is unfolding because Justice Robert P. (Bob) Young, Jr., announced Wednesday he’ll step down from the bench this coming April 30 to return to private practice at the mega-law firm Dickinson Wright.
Young himself just set a record — he served a record three two-year terms as Chief Justice. Before Young, no chief justice had ever served more than two two-year terms. The current Constitution, adopted in 1963, provides for the election of Chief Justice by members of the Court. Under the earlier 1908 Constitution, the state’s voters chose the Chief Justice. Interestingly, Young would have been eligible to run for re-election for another eight-year term in 2018 because he is only 65 years old — well under the Constitution’s age-70 barrier that would prevent him from running again. His colleague Joan Larsen, named to the Court by Snyder in 2015, is expected to seek a full eight-year term next year, as will whomever Snyder appoints to replace Young.
Young can boast three decades of judicial service at the highest level. He was a Gov. John Engler appointee to the state Court of Appeals in 1995, and then Engler promoted him to Supreme status in 1999 to fill the vacancy left by the departing Democrat Conrad Mallett. That increased the Republicans’ court majority, their first in more than two decades, from 4-3 to 5-2. Young won a partial term in 2000 and then full eight-year terms in 2002 and 2010.
Snyder’s replacement of Young will be his fourth, and it’s conceivable he might have a fifth, sixth or even seventh appointment before the Governor leaves office at the end of 2018. As noted above, Williams named five and Milliken four or five, depending on who’s counting. Other recent gubernatorial high court appointments since Williams include John Swainson, two; George Romney, none at all; James Blanchard, three; John Engler, three; and Jennifer Granholm, one.
The 1963 Constitution originally provided that in the event of a judicial vacancy at any level the successor would be chosen in a special election. No Supreme Court vacancy occurred during the first four years after the new Constitution kicked in, but in 1968 legislators placed an amendment on the August primary ballot to restore power to the governor to fill vacancies by appointment until the next general election (a provision that had always been in effect under the 1908 Constitution).
It’s interesting to note that the 1968 amendment in Michigan did NOT provide for state senate advice and consent with respect to the governor’s choice, a proviso that is clearly on display right now at the federal level with President Donald Trump’s nomination of Neil Gorsuch to the U.S. Supreme Court.
The U.S. Senate’s advice and consent powers were also in evidence back in 1991, when Bob Young was nominated by President George H.W. Bush to fill a vacancy on the federal bench in Michigan’s Eastern District Court. The U.S. Senate, then under Democratic control, killed Young’s nomination by not acting on it. Instead, the Dems waited for Bill Clinton to be elected much as the Republican-controlled Senate last year ignored Merrick Garland’s nomination, waiting for the general election to determine whether a Republican might be elected. It worked out for the majority parties in 1992 and 2016, and maybe that was best for Bob Young, too. He took a job as general counsel for AAA Michigan before Engler plucked him out of the private sector and put him on the public bench.
Here’s a rundown on what Snyder has been able to do so far:
— In 2011, Maura Corrigan resigned from the Supreme Court to become Snyder’s director of the Dept. of Health & Human Services. He replaced her with appellate judge Brian Zahra, who is still a Supreme.
— In 2013, Diane Hathaway, a Democrat who was convicted of felony mortgage fraud, was forced to resign prior to serving a year in prison. Snyder picked Macomb Co. Circuit Judge David Viviano to replace her. He’s still on the high bench.
— In 2015, Republican Mary Beth Kelly, elected to her first term in 2010, resigned to return to private practice. The governor’s choice to replace her was another female — U-M law professor Joan Larsen. She was elected last year to fill out the unexpired portion of Kelly’s term, and she’s ticketed to run for a full eight-year term next year unless something else happens (more about that later).
Two names are mentioned most prominently in the early speculation about Young’s potential successor. They are veteran state Appeals Court judges Kurtis Wilder and Christopher Murray. Wilder is currently one of only two African-American judges on the appellate panel. If appointed to the high bench, he would be the fifth black justice in Michigan’s history — after Otis Smith (appointed by Swainson); Dennis Archer, appointed by Blanchard and who later became Mayor of Detroit; Mallett; and Young.
Longtime court watcher Bob LaBrant of the Sterling Corporation thinks sitting justice Brian Zahra may be in line for a possible lifetime appointment to the federal District Court by President Trump, which would give Snyder still another appointment. And what about Justice Joan Larsen? She was on the original Federalist Society list that Trump announced a year ago he would consider for appointment to the Supreme Court should a vacancy open up. If she’s named by Trump to any federal judicial vacancy, that would give Snyder a sixth appointment, breaking Williams’s all-time record.
Then there’s this — what if the current Chief Justice, Steve Markman, whose current term runs out at the end of 2020 when he would be too old by law to run again, decides to pack it in after the election of a new governor in 2018 but before Snyder leaves office? A Markman resignation would give Snyder a chance, in the seven-week window between the 2018 general election and the end of the year, for an incredible SEVENTH PICK. That choice could then run for a full term in 2020 with the incumbency designation.
Now, that’s a record that almost assuredly will never be broken.