MICHIGAN SUPREME COURT, WITH A DEMOCRATIC MAJORITY, PICKS REPUBLICAN CHIEF JUSTICE. BLOWBACK AGAINST JUSTICE RICHARD BERNSTEIN, WHO HAD CRITICIZED NEWEST JUSTICE FOR HIRING AN EX-FELON FOR HER STAFF, LEADING HIM TO RESIGN
Question 1): Michigan Supreme Court Justice Elizabeth (Beth) Clement has been chosen by her colleagues, a majority of whom are Democrats, to be chief justice for the next two years. The vote was unanimous. She had been picked by her fellow justices in November, also unanimously, to serve as the court’s top judge through the end of last year after Chief Justice Bridget Mary McCormack quit the bench to take a job in the private sector. Most court watchers had expected a Democrat, probably longtime incumbent Richard Bernstein, would be picked for a full two-year term beginning this month.
Not so, and now Clement is slated to serve as chief justice at least through Dec. 31, 2024. She was originally nominated to the court in 2017 by former Gov. Rick Snyder, a Republican for whom she was chief legal counsel, before being elected to a full, eight-year term in 2018. While Clement was appointed and then nominated by Republicans, Democratic-nominated justices now have a 4-3 advantage on the bench although all of them except Bernstein are relative neophytes on the high court.
Said Clement in a statement: “In the new year and beyond, we all look forward to working with judges and court professionals statewide to further our shared commitment to civility, transparency, and accountability. Together, we can achieve our shared mission to ensure courts are independent, accessible, engaged, and provide an efficient justice system that works for everyone.”
Clement, who before she worked for Snyder had toiled for state Senate Republicans, has voted with Democratic-nominated justices in several notable decisions, including banning discrimination on the basis of sexual orientation and placing proposals on voting rights and abortion access on the November 2022 ballot.
So, is this a big deal? How unusual is Clement’s rapid ascension to the top post in the judiciary when she had never served as a judge in any capacity before Snyder’s 2017 appointment? In fact, she had never served in any elected capacity in her entire life before half a dozen years ago. Does that matter? And is any of this connected with Justice Richard Bernstein’s criticism a week later on the hiring of an ex-felon to serve on rookie Justice Kyra Bolden’s staff?
Answer 1): Historically, it’s unusual for a justice with only five years’ tenure to be elevated to the top spot, but considering the relative inexperience of this particular court it might be expected. Three of the Democratic justices have been on the court even less time than Clement, and only two of the seven, both Republicans, had any experience as a judge on any court before they were elected or appointed to the high bench. It IS unusual for a Supreme affiliated with the minority party to be chosen by his or her colleagues to be the chief, but it’s not unprecedented. Most recently, Marilyn Jean Kelly earned a stint as the chief when Republicans controlled the court because then-Justice Elizabeth (Betty) Weaver, a Republican, voted for her, and McCormack herself was chosen chief four years ago when Clement crossed over to back her even though the GOP held a majority. Fact is, there is some irony in Clement’s use of the word “transparency.” Collegiality or the lack therof is a mystery in the judiciary at least partly because the Supreme Court long ago exempted itself from the state’s Freedom of Information Act (FOIA). Therefore, FOIA applies only to the executive and legislative branches. Unless a justice goes rogue like Betty Weaver (who later published a voluminous but little-read book entitled “JUDICIAL DECEIT: Tyranny and Unnecessary Secrecy at the Michigan Supreme Court”), the news media and general public are unlikely to know why and how its Supreme Court operates. Whether Bernstein’s criticism of Bolden and her employment practices betokens renewed trouble in Justiceland remains to be seen, but he has already apologized to Bolden for “intruding” on her hiring decisions and to Martel himself for any embarrassment Bernstein caused him.
Question 2): Somewhat lost in the attention focussed on Justice Clement’s big win, Supreme Court officials announced Jan. 7 that a high court clerk named Pete Martel had just resigned. He had been hired by new Justice Kyra Harris Bolden (D-Southfield as a state Rep. until the end of 2022). Evidently, former Chief Justice Bridget Mary McCormack had recommended him to Bolden, as had others. It could have been a “my bad” on the way out the door by McCormack (but she didn’t think so), because the new hire immediately sparked controversy because he’d spent 14 years in prison for shooting at police officers.
Just days after being sworn in as the state’s newest Supreme Court justice, Bolden hired Martel, who pleaded guilty to armed robbery and assault with intent to do great bodily harm in 1994 after robbing a Genesee County convenience store and shooting at cops. He also attempted to escape from prison.
As noted above, the hiring prompted sharp criticism from Richard Bernstein, a fellow Democratic-nominated justice who insisted someone with Martel’s record should never work at the Michigan Supreme Court. Martel’s job duties included reviewing cases, conducting legal research, preparing questions for oral arguments and sometimes writing first drafts of justices’ opinions.
However, since Bernstein voiced his criticism the justice has received so much blowback from a variety of sources, ranging from liberal civil rights and prison reform advocates to conservative columnists that he has ‘eaten humble pie’ and issued a profuse public apology to Martel, Bolden, and his multiple critics for being ‘insensitive’ for not realizing the hurt and pain he had inflicted on advocates of ‘redemption.’ Absent has been praise for Bernstein’s original criticism.
Was this new hire by Bolden, and the recommendation of him by McCormack, a serious misstep, or just a tempest in a teapot? Was Bernstein right in the first place, if not necessarily in the way he handled it, or was he more correct in ‘walking back’ his remarks after he was blasted with criticism?
Answer 2): For starters, who is Richard Bernstein? First and foremost, he is forever linked with 1-800-CALL-SAM, the well-known law firm founded by his father and featured incessantly on TV with Father Sam and his daughter and two sons, one of them Mark (an elected member of the University of Michigan Board of Regents) and, for a long time before he was elected to the Supreme Court in 2014, Richard, who is blind. Richard was the leading vote-getter in seeking re-election to the high bench just last Nov. 8 (fellow Justice Brian Zahra was runnerup and also re-elected). Third was then-state Rep. Kyra Bolden (D-Southfield), whom Gov. Gretchen Whitmer then appointed to fill former Justice Bridget Mary McCormack’s slot when she resigned. Was Bernstein peeved that he hadn’t been elected chief justice? Was that why he lashed out at Bolden’s hire? Hard to imagine, because the vote for Clement was “unanimous” (at least. that’s the court’s official position). Of course, we can’t know for sure, because the court has exempted itself from FOIA (cue Betty Weaver).
Forget the messenger (Bernstein). Was Martel’s employment as a law clerk for Bolden a good idea? The job description does not call for such a person to be a MEMBER of the Bar of Michigan, although it does demand that s/he be a graduate of an accredited school of law. There have been other clerks hired by other justices in the past (even now) who fit the same description. IS Martel a member of any Bar? The court won’t say (and doesn’t have to), but it appears he isn’t, i.e., he’s still working to meet the “character and fitness” requirement that would allow him to be admitted. It should be noted that he apparently took the state bar exam, and passed it.
Could Bernstein have handled his dismay at Bolden’s hire in a better way? For sure. Privately, to begin with, but maybe that gets us into the secrecy issue again.
Bottom line: There should be a debate about how far “redemption” (for someone who has been convicted and incarcerated and now seeks to redeem himself) should be allowed to go. But there won’t be. The protagonists have been tip-toeing around it. Should redemption be unlimited in scope? Or are there limits? Is what Bernstein originally contended — that a man with Martel’s past should never be admitted to the job that Bolden hired him for — VALID ? Notice that, for all of Bernstein’s mea culpas about his criticism of Bolden/Martel, the justice has never actually apologized for making his basic argument — that neither Martel nor anybody with his background should ever be hired for this job.