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Commentary: Fixing Our Courts

Marilyn Kelly, who is now Chief Justice of the Michigan Supreme Court, has given her life to Michigan’s legal system.

Now in her last term on the bench, she doesn’t like a lot of what she has been seeing lately. Besides deciding cases, Michigan’s Supreme Court is charged with overseeing all the other courts.

And she fears that the public is losing respect for the judiciary, in part because of the way judges are chosen. Especially higher-level judges, those who sit on appellate and supreme courts.

“In this last year millions were spent to tear down candidates for the judiciary, to portray them as unfit for office,” she told me yesterday afternoon. “Much of this money is unaccounted for -- nobody knows who gave it. That has to have a negative effect,” on how judges are seen by the public, she added. No kidding.

This has been bothering her for some time, and she’s not alone. Justice Kelly is a Democrat, but one very distinguished Republican jurist agrees with her:  Retired U.S. Supreme Court Justice Sandra Day O’Connor, the first woman ever to sit on the nation’s highest court. “People see judges running for election and begin to think of them as just politicians in robes,“ Justice O’Connor said in a letter released today.

Worse, judicial candidates have to raise campaign funds, as she observed, “most often from the lawyers and litigants who then appear before the judges."

She added, with admirable self-restraint, “that certainly presents a challenge to your judiciary in this state.”

Well, at last someone is trying to do something about it. Chief Justice Kelly and a senior federal appellate judge, James Ryan, have put together a Michigan Judicial Selection Task Force.

They’ve gotten Justice O’Connor to serve as honorary chair -- and have recruited two dozen of Michigan’s most distinguished citizens to serve on it, most, but not all of whom are lawyers.

They intend to hold hearings, Justice Kelly told me, some possibly public, others not, and then produce a report by the end of next year. After that, they don’t intend to just let it sit on a shelf.

“We’ll have to see what we come up with,‘ Justice Kelly told me, “but I anticipate that some of what we recommend may require amending the state constitution. We may be able to accomplish other things through legislation.”

The recommendations may not all be unanimous. “I imagine we’ll strive for consensus, but there’s nothing wrong with a good solid minority report,” she said.

“Really, when you test ideas against each other it tends to make them stronger and better,” she said.

Rich Robinson, who runs the non-partisan, non-profit Michigan Campaign Finance Network, is an enthusiastic supporter of their idea He told me last night that more than $9.5 million was spent on judicial races in Michigan this year. Most of it, anonymously.

“Imagine if airlines sponsored anonymous ads saying their competitors are unsafe. It would destroy an industry in no time,” Robinson said. Justices Kelly, Ryan and O’Connor don’t want that happening to our legal system. Which is why they’re establishing the task force. I think we’re going to learn some very interesting things about justice in Michigan.

And in the end, maybe even make it a little better.