No matter what Republicans have thought about President Donald Trump’s overall performance in office, the one thing they have lauded him for is his record of delivering on his 2016 campaign promise to appoint conservative judges to fill vacancies on various federal courts.
Of course, Trump’s first and foremost challenge was filling the seat on the U.S. Supreme Court left vacant by the death of Antonin Scalia. The President met that test with a little help from Senate Majority Leader Mitch McConnell by appointing Neil Gorsuch, who so far has ruled consistently the way conservatives hoped he would.
When he was inaugurated, Trump also found that he had 107 other vacancies to fill at the district and circuit court levels across the nation — one in every eight judgeships in the entire federal judiciary. He’s wasted no time doing that with a record number of appellate appointments in the past 18 months, all of them dependable conservatives.
In Michigan, Gov. Rick Snyder has enjoyed a reputation similar to Trump’s among Republicans by naming conservatives, many of them already judges in other capacities, to the state’s various benches, be they Supreme, appellate, circuit, district or probate. No matter how skeptical or disappointed conservatives may have been about Snyder’s performance on other issues, the governor’s track record on judicial appointments was something they felt they could depend on and applaud.
But now that record is somewhat in doubt, at least at the level of the state Supreme Court. The conservative “rule of law’ court first assembled by John Engler in 1998 appears imperiled. A conservative Republican majority has been in place for all but four months of the past 20 years. The current Chief Justice, Stephen Markman, was originally appointed to the high bench by Engler, but it doesn’t appear his Republican colleagues, all of them originally named by Snyder, are completely on board with the court’s supposed “top man.”
In fact, Justice Bridget McCormick may be the real leader of the Michigan Supreme Court. If so, that’s remarkable in and of itself, since she and her fellow justice Richard Bernstein are the only two Democrat-nominated justices on the panel. They should be easily out-argued on key issues by the court’s five Republicans.
But that’s not what’s happening. Republican Justice David Viviano, with two (re-)election bids behind him (one for a partial term, the other for a full eight years), appears to recognize he won’t have to account for his decisions to conservatives again until 2024 and has developed a sudden impulse toward “independence.” His colleague Elizabeth “Beth” Clement, appointed early this year to replace the departed Joan Larsen (named by Trump to the 6th Circuit Court of Appeals), has never faced the state’s voters before but will this fall in the Nov. 6 general election. Clement has no real “paper trail” in jurisprudence, because her only credential was that she was Snyder’s legal counsel before he made her a Supreme. In that respect, she’s like Harriet Miers, who was former President George W. Bush’s legal aide when he nominated her to the U.S. Supreme Court in 2005. We all remember that that didn’t work out too well, and Miers was forced to withdraw. Clement had an easier path to judicial prominence — a governor’s nominations in Michigan don’t require Senate confirmation, so the unknown, untested Clement ascended immediately to the pinnacle of the judiciary. Once there, she hasn’t given conservatives confidence.
Last week, for instance, a new Supreme majority consisting of McCormick, Bernstein, Viviano and Clement flexed its muscles by denying leave to appeal by a 4-3 vote in North American Brokers v. Howell Public Schools, which was a significant contracts case regarding whether an unwritten promise is a valid contract.
That case is important for another reason. It is a blueprint for how a court can get rid of a controversial case without full briefing, oral argument and a published decision.
To wit, last month many court observers were stunned to learn that a motion for the Supremes to stay a Court of Appeals (COA) decision (mandating that the Voters Not Politicians (VNP) redistricting proposal must be certified for the ballot even though a decision on its constitutionality had not yet been rendered) was denied. The vote on the denial of the stay motion was not included in the Court’s order, but observers agree that it, too, was by a 4-3 vote.
Strangely, a motion for leave to appeal that same COA decision upholding the VNP proposal is still pending before the Supremes. Sometime this month the high bench will likely vote on whether to grant leave to appeal. Enter Attorney General Bill Schuette, who filed an amicus brief with the Supreme Court urging the court to grant leave to appeal. Schuette maintains the VNP proposal is NOT eligible for the ballot because it is a wholesale revision of the Michigan Constitution, not just an amendment. Schuette argues that case law requires a revision should be done by a full Constitutional Convention of elected delegates, not by an initiative petition drive.
If the Court grants that motion, it means the parties to the lawsuit will proceed to file briefs and have oral arguments. Then the court will decide the case. This particular case addresses such important issues as 1) Revision of the Constitution versus Amendment to the Constitution; and 2) Whether the COA three-judge panel effectively reversed a Supreme Court precedent on “abrogation,” which is not permitted under court rules. If the Court denies the leave to appeal motion, as it did in the North American Brokers contract case, that would end the lawsuit against the VNP proposal. Notable: The Supreme Court did order oral arguments on the motion for leave to appeal in the North American Brokers case. So, in the case of the VNP proposal, will an order to grant or deny leave to appeal show how each justice voted on that motion?
If Clement and Viviano vote with McCormick and Bernstein to deny leave to appeal in the VNP case, there may be a nuclear explosion at the Republican State Convention Aug. 24-25, if not before.
With Anthony Kennedy’s retirement from the U.S. Supreme Court last week, many legal scholars predict future partisan-gerrymandering lawsuits will be ruled “non-judiciable.” The so-called “efficiency gap” argument used in the Wisconsin Whitford V. Gill redistricting case that was effectively dismissed by the federal Supremes in June will amount to, in the words of Chief Justice John Roberts, “sociological gobbledygook” best assigned to the dustbin of academic theory.
Here’s the main point: if Clement and Viviano collude with the court’s two Democrats to deny leave to appeal in the VNP case, Republican delegates at their party’s state convention next month will likely decide that Clement and Viviano are willing dupes eager to snatch defeat from the jaws of victory by overlooking disqualifying legal flaws in the VNP petition. A resulting firestorm from outraged delegates at the convention may have consequences, and here are a few of them:
—- Would Clement still receive one of the Republican Party’s two nominations for the Supreme Court? Does it matter to her? She can be sure her name will be on the ballot, anyway (see below). But might the Republican convention, in addition to nominating Kurtis Wilder, who must also seek a full eight-year term this year, nominate another person instead of Clement? Or would the GOP nominate only Wilder and encourage Republicans across the state to vote only for Wilder in November, and not cast a vote for any other Supreme Court candidate? Such a strategy — called “bullet voting” — would actually give Wilder a better opportunity to finish in the Top Two. The Top Two vote-getters in the pack of SC candidates on 11/6 will receive the eight-year terms (from 2019-26).
—- Whatever the Republican state convention does, Clement can be sure her name will be on the November ballot with an incumbency designation. That’s because, under the constitution, she filed an affidavit of incumbency earlier this year which qualifies her automatically for the ballot. As all psephologists know, the incumbency designation is a huge advantage to judicial incumbents running for re-election. Only once, in 1976, has a major political party denied nomination to a sitting Supreme Court justice. That was when Democrats tried to punish Justice Thomas Giles Kavanagh by withholding their support; he renominated himself and was handily re-elected, finishing ahead of the man the Dems chose to nominate in his place, former Detroit Mayor Roman Gribbs.
—- Clement can expect that funding from the Republican Party and its major donors and allies in her election campaign WILL DRY UP. And she shouldn’t expect any group to do any issue ads for her. If Viviano also “goes rogue,” he must await his fate in 2024 when he will have to decide whether he wants to seek re-election.
Conservatives have already concluded that Snyder dropped the ball. His vetting of the candidates resulted in the appointment of two justices — Clement and Viviano — to fill vacancies on the Supreme Court that may be looked back upon as the fiasco that changed the course of the Michigan judiciary and legislature. How could he have botched the job so badly? After all, Clement was Snyder’s own legal counsel and worked on the Republican legal staff in the state Senate.
Many court observers point out that Presidents or governors usually screw up at least one Supreme Court nomination, whether federal or here in Michigan. What about the Democrats’ nomination of Felix Frankfurter, who didn’t turn out to be whom they thought he was? How about David Souter, nominated by George H.W. Bush? What about John Paul Stevens, nominated by Michigan’s own Gerald R. Ford? Here is what President Dwight D. Eisenhower said, ex-post facto about his nomination of Earl Warren: “Biggest damned fool mistake I ever made.” Here in Michigan, there was Eugene Black, who started out on the state Supreme Court as a Republican, but later? Not so much.
To be fair to Snyder, conservatives cannot dispute that his picks of Brian Zahra and Wilder (and also Joan Larsen, who was on the court for only two years before being promoted by Trump) were right-on. For that matter, few legal observers questioned Viviano’s record as a “rule of law’ judge until recently. Clement? She hasn’t had time to compile much of a track record, but she looks bad coming out of the box.
Today, Michigan conservatives are feeling like the young fan who said to baseball star Joe Jackson after he admitted to his part in throwing the 1919 World Series: “Say it ain’t so, Joe.” Instead, they’re saying, “Say it ain’t so, Viviano.”