Republicans often rail against “unelected judges” who issue decisions they don’t like. That sneering phrase, often used in complement with “judicial activism,” is meant to conjure the image of elitist liberals eager to meddle with legislation. The putdown also implies that judges lack legitimacy if they ascend to the bench without voter input. By that logic, judicial elections are preferable to merit selection—which is exactly backwards. Elections are the worst way to select judges. The process leaves judges beholden to party bosses, wealthy donors, and the whims of the very, very few people who actually bother to vote. Consider the state of Supreme Court elections in Michigan. On Monday, Justice Marilyn Kelly of the Michigan Supreme Court and Judge James L. Ryan of the United States Court of Appeals for the Sixth Circuit wrote in an article for the Detroit Free Press that “since the turn of the century, Michigan has gained a reputation for Supreme Court election campaigns that are among the most expensive, least transparent and most partisan in the country. Our campaign ads have been among the most offensive.”
According to the article, the 2010 candidates for the court raised $2.6 million, and political parties and state-based interest groups reported spending another $2.5 million. But these already hefty sums don’t capture the full amount spent on the campaign, because Michigan law does not require disclosure of “candidate-focused ‘issue’ advertising.” Public files indicate that political parties and interest groups spent an additional $6.3 million on “issue” ads. Lack of transparency isn’t just some abstract, philosophical problem. Michigan judges, like judges everywhere, may be required to recuse themselves from hearing a case involving a major campaign supporter. But if it’s not clear who’s donating what, and to whom, it’s difficult to hold judges accountable.
Money’s not the only problem. The Michigan Constitution specifies that Supreme Court justices “shall be selected by nonpartisan election.” To get around this system, “Republicans, Democrats, Libertarians or Greens nominate candidates most suitable to them; then the candidates are presented to voters as nonpartisans.” A reform task force has recommended that Michigan impose better disclosure requirements, and close the “nonpartisan” loophole by having candidates stand in open primaries. The task force also suggested forming a “campaign oversight committee” to fact-check campaign ads for Supreme Court candidates.