Governor’s Detroit news upstages high-court appointment

3/8/2013

DETROIT — Michigan Gov. Rick Snyder made two major decisions last week. One got a vast amount of attention, while the other drew little notice — but should have gotten more.

The event that got all the headlines was his March 1 announcement that Detroit is in a state of financial emergency, and that he soon will appoint an emergency manager.

The decision that didn’t get much attention was his appointment of Macomb County Circuit Judge David Viviano to the Michigan Supreme Court. Judge Viviano replaces Diane Hathaway, who resigned in January and is awaiting sentencing for real estate fraud.

What was controversial about this appointment — or should have been — was the process, not necessarily the new justice. There is widespread concern about Michigan’s highest court, largely for the blatantly partisan nature of the way justices are chosen and sometimes rule once they are on the bench.

Last year, a distinguished, bipartisan task force issued a highly praised report on ways to improve the court. The panel, whose honorary chairman was former U.S. Supreme Court Justice Sandra Day O’Connor — a Republican like Mr. Snyder — unanimously agreed on a method for replacing justices who resign.

The governor, however, ignored its recommendations. More on that shortly.

To anyone who has followed the Detroit situation, the announcement that an emergency financial manager will oversee the city was as surprising as snow in early March. The city hasn’t balanced its budget since 2004 and has covered shortfalls by borrowing.

Detroit has long-term liabilities of $14 billion. Nearly $2 billion of that will come due in the next five years. There is no realistic plan to pay any of it back. Detroit has hit the wall.

The governor had no choice. Nobody who is rational could say he was in a rush to take over the city. Had that been the case, he could have sent in an emergency manager last spring.

The city was within days of running out of cash last April. But instead of lowering the boom, state officials worked out an unwieldy consent agreement under which Detroit could continue to govern itself with state assistance.

Michigan officials made it possible for Detroit to borrow $137 million last April, to see the city through while it began to make painful reforms. But few reforms ever emerged.

Throughout the process, the governor seemed open and patient. By the time he declared a state of emergency for Detroit last week, it seemed clear there was no longer any choice — except to those who are pandering for votes or living in a fantasy land.

Yet that’s not what happened with the high-court vacancy. I have written frequently about the Michigan Supreme Court; to my mild surprise, the governor offered to talk to me the day he appointed the new justice.

He said that he hadn’t made an arbitrary pick. “We had a pretty open process,” he told me.

“Anyone could apply for a position,” or be recommended by others, he added. His legal team checked out candidates. Judge Viviano’s record was then reviewed by the State Bar of Michigan’s judicial qualifications committee.

The governor wouldn’t say whether other potential nominees had gotten that far. But he did say that his biggest concern was integrity, not ideology, and that social issues were never discussed. Mr. Viviano has, however, made his stoutly anti-abortion, anti-same-sex marriage, and pro-death-penalty beliefs known.

To Mr. Snyder’s credit, that’s more of a vetting process than many previous Michigan governors have used for appointments to the high court. But it is not what the judicial selection task force recommended.

The task force, which was led by now-retired Michigan Supreme Court Justice Marilyn Kelly, a Democrat, and James Ryan, a Republican who is now a senior U.S. Court of Appeals judge, suggested that a committee screen applicants and hold public hearings. After that, the task force would present the governor with a list of three to five names from which he would pick his nominee.

When I asked about this, Mr. Snyder was dismissive. “Well, they have their ideas; there are other ideas,” he said. The governor added that he eventually will have more to say about court reform, and said campaigns have gotten too partisan.

But he wasn’t willing to endorse any of the task force’s carefully crafted recommendations — even one that calls for full disclosure of who is giving money to influence Supreme Court races.

Which is, frankly, a scandal. Five years ago, a University of Chicago law school study ranked Michigan’s Supreme Court dead last among the states, primarily because it is so partisan. Little or nothing has improved since.

Last fall, an anonymous commercial suggested that high-court candidate Bridget McCormack supported terrorists. She won.

But five years ago, another ad alleging that Chief Justice Cliff Taylor slept on the bench may have helped defeat him. The woman who defeated Justice Taylor is now a convicted felon.

The reputation of Michigan’s highest court badly needs repair. Sadly, an impressive blueprint to remedy its deficiencies has so far been ignored.

Jack Lessenberry, a member of the journalism faculty at Wayne State University in Detroit and The Blade’s ombudsman, writes on issues and people in Michigan.

Contact him at: omblade@aol.com