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Political Note #302   Michigan Supreme Court:  Chief Justice Bridget Mary McCormack and Elizabeth Welch

2020               General election

The election of state supreme court judges is a big deal.  In April Democrat Jill Karofsky’s election upset reduced Wisconsin’s Republican majority in the court from 5-2 to 4-3.  Ohio Supreme Court justices, as in most states, will be chosen in November.   Ohio has a Republican 5-2 majority but both seats are currently held by Republicans.  Democratic victories in both seats would create a 4-3 Democratic majority.

The Michigan Supreme Court has a 4-3 Republican majority. Two seats are being filled – one currently held by a Democrat, one currently held by a Republican.  When the election is over, Michigan could have a 5-2 Republican Court or a 4-3 Democratic court.

Supreme Court elections in Michigan are intended to be non-partisan.  They are not exactly non-partisan.  The Party conventions nominate candidates for the Michigan Supreme Court.  Then the candidates run on a ballot that does not identify which party the candidates have been nominated by.

There is a tension between judiciousness and political views for every judge.  Judges decisions reflect their reading of the law and their understanding of the facts of a case.  How someone reads the law and how someone understands facts is a product of his or her world view.  The political party that someone belongs to is also a product of his or her world view.

It would be a rare judge who cast a vote in a case out of obedience to his or her political party.  It would be a rare judge whose judicial decisions and political history were out of synch. There are departures.  Judges change over time.  Decisions can depart from expectations.  In states where judges are elected, the election itself can be a check on a judge’s drift or can impel a judge’s drift.

Consider judicial decision making about legislative districts.  The US Supreme Court has recently made state court decision-making on gerrymandering more crucial.  In most states, the legislature decides the boundaries of state assemblies, state senates, and the state’s representatives to Congress.  According to the US Supreme Court discrimination based on race is a Constitutional issue but, according to a recent decision, discrimination based on political parties is not.  The Pennsylvania Supreme Court, based on the Pennsylvania constitution, went so far as to redo congressional boundaries itself.

In 2018, a Michigan ballot initiative authorized an independent commission to draw boundaries for state and congressional districts.   The commission is to be composed of 13 members – four Democrats, four Republicans, and five not affiliated with either party. The commission members will be selected at random in two stages.  Any Michigan registered voter can apply.  Two hundred of the applicants will be selected at random.  Legislative leaders can eliminate 20 of the 200 without giving a reason.  Commission members will be selected at random from those not eliminated. The random selection is limited only by the Commission membership requirements.  Is this a modern American version of ancient Greek democracy?

Republicans claim the political parties should have the right to select the people who represent those parties.  They lost in a Federal appeals court.  If they lose in the US Supreme Court, will they then try the state courts?  What would the Michigan Supreme Court do?  Does that depend on who is on the Court?

Bridget Mary McCormack is up for reelection to a second eight-year term.  As Chief Justice of the State Supreme Court, she ought to be a part of Michigan’s establishment. If she is, she got there as an outsider. She ran for the Supreme Court saying she was an outsider. She’s from New Jersey.  She graduated from Trinity College in Connecticut and NYU Law School.  She practiced law in New York – trials for the Legal Aid Society and appeals work for the Office of Appellate Defender.  She taught for a year at Yale Law School on a Fellowship, then joined the faculty at the University of Michigan Law School.  She founded the Michigan Innocence Clinic.  Working on non-DNA convictions for 11 years, the Clinic gained the release of 22 wrongfully convicted prisoners.

In 2012, Bridget Mary McCormack gained the party nomination and was elected — with the advertising support of most of the cast of West Wing.  The cast of the West Wing?  Her sister, Mary, was an actress on in the television seriesThough two members of her family are in show business, the family was neither posh or artistic.  Her dad was marine who owned a small business after he retired.  Her mother is a clinical social worker.

Elizabeth Welch is from blue collar Grand Rapids not academic Ann Arbor.  Her focus has been on education and conservation, on employment and consumer law.  She has done some corporate representation.

The seat she is running for is open.  Republican Steven Markman aged out of eligibility to run for reelection.  Elizabeth Welch was born in Kentucky.  Her family moved to Michigan and she graduated from East Grand Rapids High School.  She went to Penn State as an undergraduate and earned her law degree at Ohio State. She began her labor and employment practice in Louisville, Kentucky. She writes that she was recruited to Grand Rapids.  It is possible that her marriage had something to do with the change as well.  Pennsylvania, Ohio, Kentucky, but lifelong Michigan connections.

Elizabeth Welch eventually moved on to a solo practice, consulting on labor and employment law and developing avocations.   She is a long-time member of the East Rapids School Board, is a leading figure at the Michigan League of Conservation Voters, has been Vice President of the Steelcase Foundation and President of the non-profit Home Repair Services, which provides consumer support for low income families.

The Republicans don’t have their convention until the end of August.  So far, only two have announced a candidacy.   Rick Swartle is one.  He was appointed by Republican Governor Rick Snyder to the Appeals Court in 2017.  Before that, he was general Counsel to the Republicans in the Michigan House of Representatives.  Mary Kelly is the other announced candidate.  She has been a prosecutor in the St. Clair County prosecutor’s office for thirty years.

This election will shape Michigan’s future.  Because of the Court’s capacity to make decisions about gerrymandering and its effect on Congress, it will shape the nation as well.  Provide Bridget Mary McCormack and  Elizabeth Welch with some help in this election.

Judicial Elections

Arkansas has a seven person Supreme Court and non-partisan elections.  In March, Barbara Webb, wife of the Republican state party chair was elected to the supreme court, making the process appear a little less non-partisan than usual. All of the members of the court appear to be Republicans.

Georgia has a nine person Supreme Court and non-partisan elections.  Two judges with Republican backgrounds were elected this year.  Prior to the election, only one member of the court had initially been appointed by a Democratic governor.

In June, Kentucky ousted an incumbent from its seven person Supreme Court.  The runoff will now include as a favorite a self-described Christian Conservative is certainly more conservative than the ousted incumbent.  There is a second candidate, a Democratic state Rep.  So the composition of the Court is not yet final.

Minnesota has a seven person Supreme Court and non-partisan elections.  The court is now 5-2 in favor of judges originally appointed by Democratic governors.  Paul Thissen, who is up for election was appointed by a Democratic governor. Should he lose, the Court would shift to 4-3 Democratic.

North Carolina has a seven person Supreme Court.  The legislature has recently decided that judicial elections will be partisan.  The court is now 6-1 Democratic.  Three Democratic seats are up for election including the incumbent Chief Justice.  There is also an open Republican seat because the incumbent is running for Chief Justice.  If Republicans sweep the election, the Democratic majority would be reduced to 4-3.  If Democrats sweep the election, they would hold all of the North Carolina Supreme Court seats.

Oregon has a seven person Supreme Court and non-partisan elections.  In May, Thomas Balmer was reelected to a second six year term.  Oregon appears to have an entirely Democratic Supreme Court.

Texas has a nine person Supreme Court for civil matters. Elections are partisan.  All nine of the judges are Republicans. Three associate members are up for election as is the Chief Justice.   In the unlikely event of a Democratic sweep, the court would 5-4 Republican.

Texas has a nine person Court of Criminal Appeals.  Elections are partisan.  All nine of the judges are Republicans.  Three associate members are up for election.  In the unlikely event of a Democratic sweep, the Court would become 6-3 Republican.

West Virginia has a five person Supreme Court and non-partisan elections.  The party of candidates can be identified and Republicans held a 3-2 majority. Republican Tim Armstead was reelected.  Democrat John Hutchinson was reelected by a three point margin.  Democrat Margaret Workman did not run for reelection.  She was replaced by Democrat William Wooten leaving the Court with the same 3-2 majority.

In Wisconsin, Jill Karofsky won an upset victory to the Wisconsin Supreme Court in April.  That election reduced the Republican majority from 5-2 to 4-3.