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.
Pat Laughlin says
Very cogent and well framed characterization of the situation, thanks Bill.
Mark Koroi says
Elizabeth Clement has been a neutral swing vote on the Michigan Supreme Court and a neutral chief justice was likely sought by the justices as a compromise.
What is surprising about the Paul Martel hubbub was that it came from Bernstein and while publicly avowing his close affinity to the law enforcement community when the Bernsteins have been Democrats, a party that has been usually not hesitant to be critical of law enforcement.
Martel committed the crimes as a teenager and is now 48 years old. There is absolutely no indication that he has had any criminal inclinations. To publicly criticize Martel’s appointment belies the notion of redemption and has infuriated some Democrats while also likely causing Kyra Bolden some embarrassment. I was stunned from the raucous tone of Bernstein’s criticism of Martel at a time when the Bolden appointment was considered historic by the legal community.
John C Stewart says
I agree with Pat Laughlin-very thoughtful analysis by Bill Ballenger.
Tim Sullivan says
Nice article, Bill, about the Supreme Court of Michigan (can we use SCOMI as an acronym)? As for secrecy, the Court’s view is rules for thee but not for me.
You are spot on right about the inexperience of the Court, but it is a court the people wanted (cue H L Mencken). A court with only two justices with prior experience as judges is, well, peculiar. As of today, the Court we have consists of Rick Snyder’s Tom Hagen as Chief Justice, two Republican judges; an appellate lawyer whose daddy had been a Supreme Court Justice (benefit of an Irish surname); a civil litigator; an accident-injury attorney who did some civil rights work whose family wealth was THE reason he was nominated (could self-fund) and a young, two term state representative with no significant legal experience before entering politics but matches a demographic desire of the Governor. Again, cue Mencken.
A couple of Sundays ago, Brian Dickerson (whose editorial page endorsed most of the current justices) in what may have been his last column before retiring from Gannett, excoriated at least some members of the Court. As his wont, his first villain was Justice Viviano who apparently told Justice Bernstein about Mr. Martel’s background and then he went after Justice Bernstein. Justice Bernstein’s apology tour began shortly after.
But a deeper look might be more revealing as to who is, or is not, a villain.
In the case of Justice Viviano, I am not sure if Brian felt he was a judicial Svengali manipulating Justice Bernstein to go after newly minted Justice Bolden so she would be easier to beat next election when she must run to finish McCormick’s term; or if he’s Svengarlic of the Three Stooges skit who just started something with a passing comment. A less secretive Court might shed light on this.
The next one to look at is former CJ McCormick who fled the Court for a seven-figure paycheck. I do not think that she tried to set up Bolden, especially after her whining/complaining to MIRS about a lack of diversity on SCOMI (sorry, I wanted to use the acronym). But maybe she spent too much time in A2 or has drunk too much of the social justice Kool-Aid. But what is interesting is that despite the praise she heaped on Mr. Martel as a law student, SHE NEVER HIRED HIM.
Which brings us to Justice Bolden. Of all the characters in this drama, she really comes quite badly. especially her judgment. Many of the criticisms of the Free Press editorial board (which endorsed their only Republican, Paul Hudson for SCOMI) seemed to be manifest in her actions during L’Affaire Martel. First of all, it apparently never occurred to her that if Mr. Martel was so good, why did McCormick not hire him? Did she hire him as a favor to McCormick? Was it an employment genuflection to criminal or restorative justice reform? And once she hired him, she should have insisted that he stay. To have him be forced out tells us her judgment – at least when it comes to hiring folks – appears seriously impaired. Time will tell if her assessment of hiring help is Warren Harding-level bad or not.
It also tells us that she can be bullied, at least by Justice Bernstein. It is unclear if her future hiring decisions on HER clerks must now be vetted by Justice Bernstein. Whatever she said she believed about “social justice”, “redemption”, “restorative justice” or “criminal justice reform”, the Martel affair shows they were just empty words. She folded. Without a whimper let alone a fight.
What would have happened if she stood her ground? What if social justice, redemption and criminal justice reform were hills she was willing to fight and die on? Imagine her telling Bernstein if Martel goes, she goes. What if she were a principled justice and not an ambitious politician? Now that would be a fun story to cover – conflicts over principle, elections and politics. Who knows, it might even get Detroit TV stations to keep someone in Lansing to cover its fun and games. She now has two years to show that she is indeed ready for prime time.
This brings us to Justice Bernstein. As you correctly pointed out, he has never apologized for his basic argument – if you shoot at cops, you should not expect a job with SCOMI. We should not expect one either. He can self-fund and all the social justice warrior whining and grumbling does not change that. He will be renominated unless the Dems can convince Joe Biden to name him to the Federal bench. Is there an opening on the 6th Circuit?
Also interesting in Mr. Dickerson’s story in the Freep on this story was Justice Bernstein’s apparent discomfort running with Ms Bolden. Dickerson’s story tells us that Bernstein was less than impressed with credentials; that campaigning with her was the Party’s idea; and that he was more than a bit irritated that Bolden swore in Whitmer and not him. We are left with the impression that Bernstein is a bully, an obstacle if not an enemy of criminal justice reform and restorative justice and a bit of a moss back with certain prejudices that he hangs on to. The only thing missing was Dickerson’s article was quoting from The Lord’s Prayer and how Justice Bernstein forgives those who trespass against him, or at least his sense of propriety.
As for Mr. Martel, what we know about him is that he spent lots of time in prison for a crime he was most certainly guilty of, including significant time in solitary confinement. He is a criminal justice success story. He appears to be reformed. He graduated law school and has passed the bar. One result of this mess is that I suspect that the State Bar will let him in (he has passed the Bar) and if the late Jimmy Del Rio passed the character and fitness requirements, he probably will as well.
Will there be a move to “open” up the Court? Who knows, but 2024 should be fun.
Mark M. Koroi says
The character and fitness standards for admitting someone to the State Bar of Michigan is whether the public is protected by admitting the bar applicant.
Paul Martel has had no reported criminal violations since being a teenager – he is now 48 years of age. My guess – and hope – is that the SBM admits him to practice. Martel’s apparent redemption should be rewarded and not punished.
I’d guess that an ambulance-chaser will always be an ambulance-chaser. Same logic.
Tim Sullivan says
George Orwell would most likely agree with you, though his analogy dealt with apologists for Stalin.
Dennis Muchmore says
Richard Bernstein is a fine man, and a fine jurist and has earned the right to be a Justice as has Beth Clement, Brigit McCormick, Dave Viviano and now Kyra Bolden. The job is an elected position. I don’t see any of the detractors volunteering to lead a campaign to have the position appointed or to have certain qualifications attached to the requirements for election. To have the Democrat or Republican Parties have anything to do with the nomination process is what is so facetious. That the court operates without bickering (for the most part) is something we should all be proud of.
Arthur A. Busch says
Dennis Muchmore points out the most interesting observation. These jurists have been highly collegial up until Justice Bernsteins intrusion on the prerogatives of a Justice hiring their own staff members.
Bernstein’s method of publicly berating the new Justice is greatly troubling. It was shocking is a better way to describe it. Bernstein’s mouthing off about how a new Justice arranges the furniture in her office is inappropriate.
Justice Bernstein’s most egregious action in this rather bizzare story is his proclamation that he is 100% pro-law enforcement. That statement is highly inappropriate for a Justice who is suppose to weigh in on the propriety and lawfulness of actions by cops and prosecutors on a regular basis.
I’m a former prosecutor and even I realize that statement is 100% dumb. Justice Bernstein has created arguable issues of appeal regarding bias each time he doesnt disqualify himself from hearing a case with law enforement involved.
Dennis Muchmoore is being nice to this group of Justices. Any Justice of the Michigan Supreme Court who wants to avoid re-election problems should not raise partisan issues as if they are angling for the next elective office.
Justice Bolden never made an argument that she hired the most qualified candidate to her staff. I dont believe she even set up a process to hire this person. She simply took Bernstein’s bait and ran with it. Were there other candidates? What was the basis for hiring this convicted felon? Bolden skipped all that and instead went straight to arguing a political issue as if she were still a legislator and not a Justice of the Supreme Court.
Both Justices Bernstein and Bolden brought their politics inside the courthouse in a way that diminishes the stature of each of them.. In my opinion, they both contributed to harming the image of the Court as well as their own chances at re-election.
Mark M Koroi says
Agreed as to the “100% pro-law-enforcement” statement being inappropriate for a judicial officer.
The fate of criminal defendants before the Michigan Supreme Court hinges on the impartiality and erudition of all seven justices.
Larry Kestenbaum says
Justices of the Michigan Supreme Court are nominated in political party conventions, and then run on the non-partisan ballot. Almost everyone agrees this is a bad system, yet the last person to actually try to change it was Jim Brickley in 1982.
As a law student in 1982, I went door-to-door to collect signatures for Lt. Gov. Brickley’s proposed constitutional amendment to restructure the judiciary. Unfortunately, not enough people joined us, and the initiative failed to make the ballot.
(Electing judges AT ALL is a pernicious legacy of the Andrew Jackson era. That said, it could be argued that Michigan already has a de-facto appointive system, since governors have the unfettered power to appoint to fill vacancies, and even new appointees get to run with the incumbent designation on the ballot. Incumbent-designated judges rarely lose elections.)
For a number of years, national observers rated the Michigan Supreme Court as one of the nation’s worst and most partisan state high courts. Partisan Republican justices came within one vote of keeping the Voters-Not-Politicians districting reform off the ballot in 2018, on the spurious ground that it was too big a change for voters to initiate.
I give Gov. Rick Snyder full credit for overcoming the court’s bad reputation. Justices he appointed (notably Clement and Viviano) have been able to rise above narrow partisan concerns. Had it not been for his appointees, the Legislature would still be gerrymandering the state.
Still, it distresses me to see all this discussion about the Michigan Supreme Court and its problems, and hardly any mention of the fundamental issue: a nakedly partisan judiciary, nominated in political party conventions, and put before an electorate that mysteriously favors Irish names.
Surely, we can do better than this. Other states already do.
Mark M Koroi says
“……an electorate that mysteriously favors Irish names.”
One Irish-American explained the “mystery” was that Irish-American politicians developed a reputation for fairness as officeholders, thus those surnames earning the trust of the electorate at large.
Damon Lieurance says
I disagree with the Republican label for Elizabeth Clement. I was at that nominating convention and she was gaveled through by the chair despite losing the voice vote and was subsequently booed off of the stage. Her name was stripped from Republican campaign advertising and her campaign was funded by the Michigan Dems. Having no connection to the party nor its platform and receiving zero campaign support, Elizabeth Clement is arguably the least “republican” Republican in this state.
Lawrence Kestenbaum says
(1) It’s not plausible to say her Clement’s campaign was “funded” by Michigan Democratic Party, which had its own candidate against her.
(2) Does an incumbent judge NEED much of a campaign? The ballot designation does most of the work. That said, an incumbent justice could easily attract contributions from lawyers of all political stripes.
(3) Republican leaders gaveled the unpopular Clement through the GOP convention, presumably aware that a non-incumbent Republican would probably lose the seat.