REVENGE IS A DISH BEST SERVED COLD. WHO SHOULD BE FORCED TO EAT IT?
It took two decades, but the Michigan Republican Party’s hegemony over the state’s judiciary assembled by John Engler before he left the governor’s office in 2002 has been destroyed. Everybody knows that.
But how did that happen? The GOP did it to themselves, starting with a pair of ill-fated appointments to the state Supreme Court by Republican Gov. Rick Snyder in his final years in office. That’s one of the reasons Snyder today is a man without a political country — he’s gotten little credit from Republicans, the legacy media, and rank-and-file voters for his achievements, such as the Detroit bankruptcy and the ensuing “Grand Bargain” bailout that pulled Motown out of its financial morass, and he’s reviled by Democrats for helping to enact Right to Work legislation plus his tax ‘reforms’ that Democrats have wasted no time repealing now that they control the Legislature and the governorship.
The Michigan GOP didn’t help itself by taking its eye off the judicial ball with weak and ill-funded candidates for the high bench in successive elections. Meanwhile, Democrats were laser-focused on winning back control of the top court by nominating better candidates with electable big names. Then, all they had to do was sit back and watch the Republicans destroy their own majority.
Today, Republicans of all stripes are bitter — it doesn’t mater whether they are Trump-style MAGAs or old-fashioned conservatives or moderates. But they have only themselves to blame. Here’s the narrative from the GOP point of view:
A judicial coup d’état occurred at the Michigan Supreme Court in 2018. That’s when Justice Stephen Markman, appointed and nominated as a Republican, still held the title of Chief Justice. Nevertheless, the conservative ‘rule of law’ court first assembled in 1998 by then-Gov. Engler through appointments and subsequent electoral successes collapsed.
That’s because Justice Bridget McCormack that year became the de facto leader of the Michigan Supreme Court. She and Justice Richard Bernstein were the two Democratic convention-nominated justices that on paper was a 5-2 R/D court. They were joined in this coup by two Snyder appointees, David Viviano and Beth Clement, who bolted from the other three Republican-nominated justices (Markman, Brian Zahra, and Kurtis Wilder) to establish a new majority coalition.
This majority coalition first flexed its muscles by denying leave to appeal, on a 4-3 vote, a Court of Appeals (COA) decision in North American Brokers v Howell Public Schools. Court watchers were stunned that such a normally pro forma motion by the losing lawyers would be spurned by the high bench. It signaled the possibility that the same thing might happen in a far more important case — the Voters Not Politicians (VNP) redistricting ballot proposal. Most court and political observers recognized that the VNP proposal was designed to eventually produce legislative district maps giving Democrats an advantage, which it did.
A motion for leave to appeal the COA decision upholding the VNP proposal in 2018 was still pending, but it was now very much in doubt before the Michigan Supreme Court.
Attorney General Bill Schuette, a Republican, filed an amicus brief with the Supreme Court urging the Court to grant leave to appeal. That motion was eventually granted, but not before the lawsuit’s backers — Republicans who were challenging VNP — came under an intense public relations assault by progressive advocacy groups. Did that send a message to Justices Clement and Wilder, whose terms ended in 2018, as to what those groups were prepared to do to them in the upcoming campaign?
When it came to a final decision, following oral arguments, the two Republican-appointed Justices, Viviano and Clement, predictably voted with McCormick and Bernstein. That produced a 4-3 decision that put the VNP question on the November ballot as Proposal 2.
Several questions arose soon after the Supremes’ decision was released. By voting to allow VNP’s placement on the 2018 November ballot, would Justice Beth Clement still receive one of the Republican Party’s two nominations for the Supreme Court in November 2018?
Would the upcoming 2018 Republican State Convention, in addition to nominating Justice Kurtis Wilder, who had voted that VNP should be ineligible for the ballot, nominate another person instead of Clement? Would the party just nominate Wilder and encourage Republicans during the course of the campaign not to cast a second vote for any other Supreme Court candidate, giving Wilder a better opportunity to finish in the top two and receive an eight year term?
Article VI, Section 2, of the 1963 Michigan Constitution says an incumbent justice whose term is to expire may be a candidate for re-election simply by filing an affidavit of candidacy allowing an incumbent to by-pass a political party nominating convention as did incumbent Justice Thomas Giles Kavanagh in 1976 and 1984. Incumbent Justice Charles Levin also went the affidavit route in 1980 and 1988.
Did Michigan’s 1963 Constitution even permit Clement, who had never been elected as a justice, only appointed, to use the affidavit path and have her name automatically placed on the November 2018 ballot?
Would the Michigan Supreme Court be called upon to make that determination? Would it come down to the dictionary definition of the word “re-elect”? Does the word “re-elect” require someone to first be elected, not just appointed, to be a candidate for re-election and then opt to use an affidavit of candidacy to gain placement on the November ballot?
Justice Kavanagh, before he took the affidavit route, had been first elected to the Supreme Court in 1968. Justice Levin was first elected to the Supreme Court in 1972. If Clement were not nominated at the 2018 Republican State Convention, would she be ineligible for placement on the November 2018 ballot and, come January 1, 2019, be off the Court looking for outside employment?
Rather than put that constitutional requirement to a test, state GOP Chair Ron Weiser, not wanting to offend Rick Snyder, blinked and pressured the Republican State Convention to reward Beth Clement with one of their two Supreme Court nominations amid a tsunami of booing from dispirited delegates on the convention floor.
Michigan history will record that the selection of Viviano and Clement to fill vacancies on the Supreme Court, when neither one had an appellate court paper trail, was a giant risk. Viviano prior to his appointment to the Supreme Court was a trial judge in Macomb County. Clement was Governor Snyder’s legal counsel with no judicial experience; the consequence of those appointments not only changed the direction of the Michigan judiciary, but also the Michigan legislature.
In retrospect, Governor Snyder would have been better served by following the “Engler Rule.” If asked, the three-term Governor would have likely counseled Snyder to appoint Viviano and later Clement to the COA where their accumulated opinions, concurrences, and dissents could be evaluated over a longer period of time before considering them for elevation to fill a Supreme Court vacancy. During the Engler era, Justices Clifford Taylor, Robert Young, and Markman all served on the COA before being appointed to fill a Supreme Court vacancy. Justices Betty Weaver and Maura Corrigan were elected to the Supreme Court after first serving on the COA.
Rather than follow a coherent conservative judicial philosophy, Clement and Viviano spurned that course and chose instead to join forces with the two liberal Democratic convention-nominated Justices on the Court and during the 2018 term voted consistently to provide that new coalition with a series of significant legal victories.
From the Republicans’ point of view, Clement’s vote was at least understandable when viewed in the context of her political survival in the upcoming 2018 election. That election came halfway into President Trump’s term when the party in the White House usually suffers losses; Democrat Gretchen Whitmer at the top of the ticket also had a commanding lead in gubernatorial polling after eight years of the Snyder Administration; and VNP had amassed an amazing grassroots network of motivated volunteers spread out across the state. None of that boded well for an appointed Republican Supreme.
Justice David Viviano’s vote, on the other hand, defies easy explanation, then and now. Was his vote a betrayal of his Republican justice colleagues? Or calculated ambition mixed in with opportunism? Did he have an epiphany, an ideological conversion, on his road to the formation of this new majority coalition?
No way around it, Viviano was essential to creating the 4-3 majority coalition. Clement was no Federalist Society cultist, but philosophically she saw Bridget McCormick as an ally. McCormack attended a Clement fundraiser in liberal Ann Arbor. However, with just Clement alone, the coalition had only three votes. Viviano’s participation in the Court ‘s insurgency was key. It could not have happened without him bringing his fourth vote to the table. David Viviano was also the deciding vote in the VNP case. He wrote the 4-3 opinion.
Democrats have no real reason now to step in to help Justice Viviano, as McCormack did with Clement. In 2022, Viviano, looking ahead to 2024 when he’s up for re-election, conveniently returned to a more conservative orthodoxy by dissenting in the Court’s decision to place the abortion and voting rights proposals on the ballot. Viviano’s dissent raised the Court’s 2012 precedent requiring that all the provisions that are altered or abrogated in the Constitution by a proposed amendment be published on the petition itself. Ironically, Viviano’s decision in the 2018 VNP case had rejected such a challenge.
Clement voted to place both 2022 proposals on the ballot. Beth Clement has gone on to be elected Chief Justice when McCormack resigned from the Court in November 2022. Expect Clement in 2026 to proclaim her judicial independence and, like Justices Kavanagh and Levin in the past, decline any partisan convention nomination and proceed to sign an affidavit of candidacy to be placed on the ballot with an incumbency designation under her name.
Despite David Viviano’s, 2022 ballot question dissents, he should still expect to be vilified by the MAGA crowd at next year’s Republican State Convention, identifying him as the one person most responsible for the GOP’s sudden fall from judicial power in 2018. His authorship of the opinion in the VNP case gave a green light to a redistricting scheme that resulted, for the first time in 40 years, in the loss of Republican control of both chambers of the legislature.
Viviano stands for re-election in 2024 for another eight-year term. Given the upheaval in today’s Michigan Republican Party, enraged convention delegates are not the kind to turn the other cheek and say to Viviano that 2018 is forgiven. Viviano cannot expect a Republican-convention nomination for re-election. He’ll take the hint and go ahead and get ballot placement on his own by filing an affidavit of candidacy. He should not expect any party funding, nor can he expect any GOP grass-roots enthusiasm for his re-election. The message is clear, “You made your bed, now lie in it.”
Today’s Republican Party will nominate any MAGA lawyer who shows up over Viviano, even Matt DePerno, last year’s failed nominee for Attorney General. As of late, winning in November has not been a Republican convention’s top priority. Remember, one of their statewide nominees in 2022 is the current GOP Party Chair, Kristina Karamo, who was sure to fail as her party’s candidate for Secretary of State last year, and did. She doesn’t owe Viviano a thing.
For all those MAGA assembled delegates who will attend the 2024 Republican State Convention, Viviano’s 2018 participation in the Supreme Court coup defines him as the ultimate RINO (Republican in name only). For those convention delegates, the 2024 Supreme Court election presents an opportunity for political payback.
For Justice David Viviano, the Michigan GOP may well decide that it’s time for revenge, served cold.