Mark Brewer Returns from Elba — What’s Next?

Does Mark Brewer want his old job back? Could be, and his party could do worse than let him have it.

When longtime Michigan Democratic Party Chairman Brewer was ousted from his post at a 2013 party convention after a record 18 years at the helm, one immediate result was that judicial campaigns are no longer a blood sport in the Great Lakes State.

Brewer’s successor, Lon Johnson, and Johnson’s successor, ex-state Rep. Brandon Dillon, haven’t come close to giving state Supreme Court contests the kind of attention (and passion) that Brewer did. They haven’t done any better than Brewer at winning other offices, either — Michigan Democrats are now in a weaker position than they were when Brewer was in charge.

Brewer, an attorney, invested heavily in the Court immediately after taking office more than two decades ago. In 1996, he helped state Appeals Court Judge Marilyn Jean Kelly beat out another judge, Republican Hilda Gage, to keep the Democrat-nominated majority on the high bench. Then, incumbent justice Patricia Boyle, also a Democrat, stunned court observers in 1998 by declining to run for another term. That opened the door for Maura Corrigan, a Republican judge, to run for and be elected to the open seat, giving the Republicans their first Supreme majority in more than two decades. In fact, other than a brief period in 1976, the GOP hadn’t constituted a majority on the Court since the 1950s.

Sapristi! — one more shocker: another Democratic incumbent justice, Conrad Mallett, decided it just wasn’t as much fun being on the high bench without a Democratic majority, and he resigned after the 1998 election in the middle of his term. That allowed the worst of all outcomes for the Democrats — Gov. John Engler appointed another Republican judge, Robert (Bob) Young, to replace Mallett, giving the GOP a humungous 5-2 edge.

No one was prepared for Brewer’s next move. Beginning in July, 2000, Brewer unleashed a TV air war against three Republican justices, all of whom were on the ballot at the same time running for, respectively, a full eight-year term and two partial-terms. The “famous “Taylor, Markman, and Young, Oh My!” campaign ensued. Counter ads, principally from the Michigan Chamber of Commerce, followed. In total, nearly $15 million combined was spent by all candidates, parties, and interest groups in the year of the Gore v Bush presidential run. The so-called “issue ad,” funded by corporate and labor union dollars, emerged to become a staple of judicial campaigns,and for statewide and legislative offices as well. As it turned out, all three incumbent GOP justices won, so Brewer was denied in his effort to flip the Court to a 5-2 Democratic majority.

But that didn’t stop Brewer. If he couldn’t win judicial contests, he decided he’d just change the state Constitution. In 2007-08, Brewer was the mastermind behind the ballot initiative petition drive, “Reform Michigan Government Now” (RMGN). One of the 34 changes in Brewer’s stealth initiative was a downsizing of the Supreme Court from seven justices to five. The two justices with the least seniority would have their seats abolished — predictably, they would be Republican incumbents Young and Steven Markman. But Brewer’s ploy was challenged by Republican-backed interest groups, and a majority of the Supreme Court, including one Democratic justice, ruled that RMGN! was not a genuine amendment to the state’s basic charter but, rather, a general revision of the Constitution, which could be accomplished only by a Constitutional Convention.

Undeterred, Brewer plunged into the 2008 general election campaign with a vengeance, producing a TV  ad in October depicting Chief Justice Cliff Taylor, played by a Taylor look-alike, asleep on the bench during oral argument. The basis for the ad was simply an affidavit Brewer obtained from the mother of a child who died in a house fire. Nobody else, including a vigilant Geoffrey Fieger (the Democrats’ 1998 gubernatorial nominee) who argued the case before the court and disliked Taylor, noticed such slumber. The “Sleeping Judge” ad, coupled with a coordinated campaign to have voters cast their ballots for Barack Obama for President and Diane Hathaway for the Supreme Court results in Taylor’s defeat. The GOP’s edge shrank to 4-3 (although, two years later, Hathaway was forced to resign from the Court after she was sentenced to prison for bank fraud).

Meanwhile, in 2010 renegade Republican Betty Weaver decided not to seek re-election , allowing then-Gov. Jennifer Granholm to replace her with Democrat Alton Davis, a northern Michigan appellate judge. That gave Democrats a brief, five-month majority before Davis was swept out of office by a GOP general election tsunami that re-elected incumbent Bob Young and catapulted new GOP nominee Mary Beth Kelly onto the court, restoring the Republicans’ 4-3 majority before they boosted it again a few months later with Hathaway’s departure.

In 2012, Brewer’s Democrats shrewdly nominated Bridget McCormack, a U-M law professor, to run for an open seat on the Court created by the retirement of Marilyn Kelly, who had reached the constitutional limit of age 70 and couldn’t run again. McCormack finished first among equals, but another Republican also won, meaning the GOP kept its 5-2 margin. Still, McCormack changed the culture of the court — she got along well with all her colleagues, especially the new chief justice, Bob Young.

In 2014, another Democrat, Michael Cavanagh, also hit the age 70 “can’t run again” barrier and was forced to retire after 32 years on the Court. Brewer was gone, but he’d trained his party well — the Dems nominated Richard Bernstein, who toiled in the law firm of his father, Sam, Michigan’s “King of Torts.” Since Bernstein could largely self-finance his campaign, Republicans made no real effort to topple him. Instead, they concentrated on re-electing incumbent Brian Zahra to an eight-year term as well as a new appointee, David Viviano. Everybody got their way, Zahra, Viviano, and Bernstein all won, and Bernstein soon joined McCormack in becoming a collegial member of the court.

This year, Democrats made next to no effort to challenge Viviano for a full eight-year term or another new appointee, Republican Joan Larsen, who had been named by Snyder to fill out the term of Mary Beth Kelly, who had resigned to enter private practice. Instead, the new state chairman, Brandon Dillon, concentrated all his efforts on Hillary Clinton’s presidential bid, two seats in the 1st and 7th Congressional Districts, and an attempt to regain a majority in the state House of Representatives. All three efforts failed.

In the meantime, Mark Brewer suddenly reappeared. First, he ran for the Macomb Co. Board of Commissioners, but got shellacked in the Aug. 2 Dem primary. Rebounding quickly, he led the charge in late summer with a law suit challenging the constitutionality of a new state ban on straight-ticket voting. He picked the right jurist, Democratic federal district judge Gershwin Drain, and got the right verdict — straight-ticket voting stayed in place in the Nov. 8 general election, although it appears that may have backfired on Brewer’s party with the unexpected Donald Trump victory in Michigan that carried numerous Republicans at the local level into office.

Next, Brewer hitched his wagon to Green Party presidential nominee Jill Stein, widely regarded as a surrogate for Democrat Hillary Clinton in her efforts to secure a recount of the presidential vote in Michigan despite Stein’s winning only 1% of the Michigan vote. Again Brewer secured a favorable federal district judge, Mark Goldsmith, and a favorable verdict — Goldsmith ruled at midnight last Sunday that a recount should begin this past Monday, Dec. 5, instead of the two-business days delay written into the election law that would have required the recount not to begin until Tuesday or Wednesday, Dec. 6 or 7. Furthermore, Brewer got the federal 6th Circuit Court of Appeals to uphold Goldsmith’s order on a 2-1 vote (two of the judges were Democratic appointees).

However, in a parallel action in state court, Michigan Attorney General Bill Schuette and lawyers for Trump challenged Stein’s standing to even request a recount on the grounds that her meager 1% of the vote could not possibly overturn the voters’ presidential verdict at the ballot box.

Meanwhile, Brewer has petitioned the state Supreme Court directly, bypassing the Court of Appeals, to allow the recount to proceed. He also filed a motion demanding the recusal of Chief Justice Young and Justice Larsen on the grounds that their names have appeared on a Federalist Society list of conservative, rule-of-law jurists that President-elect Trump has said he might pick from to replace the late Antonin Scalia on the U.S. Supreme Court. Brewer’s tactic appears to have worked — Young and Larsen have announced they will recuse themselves from the ongoing recount deliberations at the high court level.

Brewer’s desired by-pass did not happen, however. The state CoA ruled , 3-0, that any recount was improper and should cease. The Board of State Canvassers voted 3-1 on December 7 that the Secretary of State should halt the recount if and when Goldsmith dissolved his Dec. 4 order. Goldsmith indeed lifted his order later that evening. It seems unlikely that the state Supremes or the 6th Circuit feds are likely to order the recount to resume on appeal, although Brewer is still trying.

Even though Brewer appears to have lost once again, maybe that isn’t the point. He’s a player. He’s back from his exile on a political Elba.

Does Brewer’s re-emergence signal his availability to replace Brandon Dillon as Democratic party chairman? After all, this is what he seems born to be, and do. Even in defeat, only he seems capable of giving his rival Republicans fits. And, if he becomes chairman again, does this also signal that the “Era of Good Feelings” at the Michigan Supreme Court may be drawing to a close?

Remember, though, that Napoleon’s experience was cautionary. After the French emperor’s escape from Elba, he was defeated at Waterloo, followed by permanent exile on St. Helen.

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