Michigan Supreme Court elections, 2008

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2008 election

The 2008 Michigan Supreme Court election will be instrumental to the makeup of the state's highest court, as Chief Justice Cliff Taylor, a Republican, seeks to defend his seat from Democratic challenger Circuit Court Judge Diane Marie Hathaway. Robert Roddis, who was nominated by the Libertarian Party, is also in the race.

The winner of this year's election will serve an 8-year term in the state's highest court. There are usually two contested Supreme Court seats each election period, but because there are only 7 justices, every eighth year only one justice is chosen by voters in the state's non-partisan election.

Although state Supreme Court justices in Michigan run on a non-partisan ticket, the elections have a partisan flavor that is not usually present in non-partisan contests. In order to gain a listing on the ballot, a non-incumbent candidate must first gain the backing of either the Republican or Democratic party at its state nominating convention.

However, a justice who is running for re-election does not have to go through the process of gaining a nomination from a political party and is simply listed on the ballot, if he or she desires to run again. Incumbent justices are also listed on the state's ballot as "Justice of the Michigan Supreme Court", a peculiarity of Michigan's judicial ballot that has been considered to give a slight edge to judicial incumbents.

If the seat up for election in 2008 goes to the Democratic nominee, it would mark just the second time in the last three decades that a challenger ousted an incumbent.

2008 Election results

Diane Hathaway defeated Clifford Taylor on November 4. Hathaway garnered 1,854,744 votes (49%) to Taylor's 1,484,924 votes (39%). Libertarian candidate Robert Roddis won 421,091 votes, or 11%. Hathaway became the first challenger to defeat a sitting Chief Justice in the history of the court.

Clifford Taylor

Clifford Taylor has served on the Michigan Supreme Court for over 10 years. Initially appointed to fill a vacancy (in 1997), Justice Taylor won the right to retain his spot in 1998, and again in 2000, that time winning a full eight-year term. In 2005, his fellow Justices voted him Chief Justice. During his term on the court, the court has tended to a position of judicial restraint.

Record as chief justice

Areas that Taylor's campaign have mentioned as his accomplishments as a chief justice include

• Holding court proceedings in cities around the state to enable more people to observe the court's proceedings.
• Asking that all judges who receive a state car as part of their salary return it to the state for auction, as an acknowledgement of Michigan's financial woes. This act led to savings of $420,000.
• Recommending that judicial vacancies not be filled in areas where court filings are down.

What Taylor sees as at stake

Taylor's campaign has expressed what they think is at stake in the election: "This November the future of the Michigan Supreme Court will be at stake. Judicial conservatives make up a narrow 4-3 majority on the court. If [Taylor] loses, it will be a 4-3 activist court. Voters will be given a simple but serious choice: preserve what the Wall Street Journal calls, 'the best court in the nation' by re-electing Chief Justice Cliff Taylor…or return Michigan to an unsavory era of Jackpot Justice and a frightening lottery of lawsuit abuse by electing a friend of the personal injury lawyers."

On October 12, 2008, Taylor expressed similar themes in an interview with an Associated Press reporter. Taylor said, "We are largely remaking the legal culture in this state to return it to a traditional, jurisprudential approach -- which is that courts interpret the law, they don't make it. If I can get another term ... we can really fully expose a whole generation of Michigan lawyers to this approach to the law and perhaps internalize it to some degree."

Taylor also said in this interview that charges against him and the court during his tenure for showing favoritism to corporations is "a giant malapropism" promulgated by unions, the Democratic Party, and trial lawyers. Taylor and the judicially conservative bloc on the court see themselves as deferring to the state's policymakers (the legislative branch) in the mode of judicial restraint. They also believe they are righting years of what they see as activist progressive judicial precedents that were based upon a "for" and "against" mentality.

Interviews

American Justice Partnership interview with Taylor:

In the interview, Taylor speaks about running for the Michigan Supreme Court twice in two years (the first, in 1998, to complete the term; the second, in 2000, to receive a full eight-year term), and said why he thought this was rewarding: "My ability to inform the people of Michigan about what it was I was attempting to accomplish, and that was that I was a 'judicial conservative'--and by that I mean not a political conservative, but a judicial conservative. Which means that I believe the court's job is to follow the law and follow the constitution. It may be that that produces outcomes that people who aren't aware of that template find offensive."

See here for the full interview.

WJR (radio) interview

On March 29, 2008, Paul W. Smith interviewed Michigan GOP Chairman Saul Anuzis and Chief Justice Cliff Taylor during the "Mackinac Conference". "It's a great honor to head [our] court.... I'm very happy to be the Chief Justice of this court....I think I did exactly what I told the people I'd do, which is not legislate from the bench; this is not the California Supreme Court."

Endorsements

• 2008-06, POAM Endorsement of Chief Justice Cliff Taylor
• Citizens for Traditional Values – PAC
• Detroit Regional Chamber PAC
• Michigan Bankers Association PAC
• Michigan Health & Hospital Association
• Michigan Manufacturers Association
• Michigan Realtors Association PAC
• See the full list here

Newspaper endorsements

Taylor's bid for re-election has been endorsed by the state's two largest newspapers, the Detroit Free Press and the Detroit News. The Detroit Free Press urged its readers to retain Taylor, while at the same time writing that the newspaper's editorial board would ultimately like to see a less conservative justice on the court.

The Detroit News also lobbied its readers to return Taylor to the court. The editorial board says that Taylor is "one of a group of jurists who have in recent years changed the direction of the court — mostly for the better...the overall movement of the court has been to return to the concept that liability must have a relationship to fault." The editors also say that Taylor has come under the degree of fire that has characterized this campaign from "those who wish the court would return to being more friendly to trial lawyers."

The Grand Rapids Press supports returning Taylor to office. The paper says he brings "a sharp legal mind" to his rulings and "just as sharp an accountant's pencil" to his administrative role as chief justice. The editorial board concludes, "Over a tenure of 11 years, Mr. Taylor's minimalist and common-sense approach has been the right direction for the Supreme Court. In this important race, Chief Justice Taylor is the best choice for Michigan."

The Muskegon Chronicle, the Bay City Times and the Oakland Press also endorse Taylor.

Diane Marie Hathaway

Democratic Party nomination

Circuit Court Judge Diane Marie Hathaway accepted the September 6 nomination of the Michigan Democratic Party to challenge Chief Justice Cliff Taylor in 2008's lone Supreme Court race. Hathaway won the party's nomination in a close contest with fellow Circuit Court Judge Deborah Thomas.

Judge Hathaway has served as a circuit judge in Wayne County, Michigan, since 1993. She is also a former assistant prosecutor in Macomb County.

Biography and education

Diane Marie Hathaway is the daughter of a Detroit Police Officer, who she credits for teaching her the values of hard work and honesty.

Hathaway is married, has five children and one grandchild.

In 1985 she served as a research clerk for the Wayne County Recorder's Court and as a research clerk for the Third Judicial Circuit Court of Michigan in 1986. She has served as the Chief of the Drug Forfeiture Division in Wayne County. She was a Macomb County Assistant Prosecture from 1987-1993. In 1993 she became a Judge for Michigan's 3rd District Circuit Court and has served to present.

Hathaway's educational background:

• Detroit College of Law, J.D., 1987
• Madonna College, B.S. Allied Health, 1983
• Wayne State University, 1980-1981
• Henry Ford Hospital School of Radiological Technology, 1972-1974
• St. Andrew High School in Detroit, 1968-1972

Appearances

On October 6, 2008, during a "Vote for Change 2008" concert headlined by legendary rocker Bruce Springsteen, Michigan Supreme Court candidate Diane Hathaway told the audience of roughly 11,000 that her opponent's judicial philosophy is "a death trap, a suicide rap..."--a reference to Springsteen's "Born to Run".

Endorsements

Some of the organizations that have endorsed Hathaway's candidacy are:

• AFL-CIO
• Michigan Professional Firefighters Union
• Michigan Nurses Association
• UAW
• UNITE HERE
• United Food and Commercial Workers
• The Teamsters
• See the full list here

Newspaper endorsement

The editors of the Lansing State Journal endorsed Hathaway for the high court on October 19. They wrote, "The most important vote a Michigan resident can cast this fall is to oust Chief Justice Clifford Taylor from the Michigan Supreme Court...Politics before the public. That's the Taylor court...Judge Hathaway has a solid record on the circuit bench. She is eager to work for, not against, the people of Michigan...Cast your vote Nov. 4 for Hathaway - and for Michigan.

Fundraising

Independent expenditures, or expenditures by party committees, PACs, and independent groups on judicial campaigns, can be much greater than the amounts spent by the campaigns themselves. This appears to be the case in the race between Taylor and Hathaway; a late-October analysis by the Michigan Campaign Finance Network (MCFN), a Justice at Stake partner, showed that the Michigan Democratic Party and the Michigan Chamber of Commerce are outspending the candidates on television advertising, which is traditionally the biggest-ticket item financially in campaigns. The report produced by MCFN does not analyze other areas of independent expenditures (such as radio, billboards or direct mail).

By analyzing ad buys on television stations, the MCFN found that:

• The Chamber of Commerce had purchased $1.3 million of television air time for ads supporting Taylor.
• The Michigan Democratic Party had purchsed $466,000 of ads attacking Taylor.

From 2000 through 2006, similar independent groups spent $10.5 million for judicial issue ads in Michigan. Through November 4, up to $2 million may be spent independently in the contest.

Taylor

Taylor has raised a record-setting $1.7 million for his re-election campaign through October 24. When he ran for election in 2000, he raised $1.3 million. That figure sets a record for elected state Supreme Court candidates. Taylor has been present at various state fundraisers, including one at the home of Hillsdale College economics professor Gary Wolfram, and another hosted by former U.S. Ambassador to Italy (and Michigan Republican fundraiser), Peter Secchia.,

For Justice Taylor's campaign contributions and spending from January 1st to August 7th, 2008, see here.

Hathaway

Through October 24, Hathaway's campaign committee had raised $271,145.

Complaint

In April 2008, Democratic state party chairman Mark Brewer submitted a complaint to the Michigan Judicial Tenure Commission alleging that a fundraising letter sent out by former governor John Engler on behalf of Taylor violated Canon 7 of the Michigan Code of Judicial Conduct. The canon requires a disclaimer regarding attorney donation limits that was not included in the letter. Republicans said the complaint was frivolous.<,

Campaign advertising

Pro-Taylor TV spot

The Taylor campaign is running this campaign ad:

TV spot targeting Taylor

On October 20, 2008, the Michigan Democratic Party began airing an ad that claims that Taylor fell asleep while listening to oral arguments in late December 2005 in the case of "McDowell v. City of Detroit". Republicans and the Taylor campaign deny the truth of the ad. James Gross, an attorney who was present in the courtroom during the hearings, has issued a sworn affidavit contradicting what the ad says.,,,

Associated Press reporter David Eggert produced an analysis of the ad. In the analysis, Eggert writes:

• "...it's hard to know if the accusation is fair."
• The ad includes no videotape of Taylor dozing, and the Democratic Party was unable to provide such footage to Eggert.
• "A check of Michigan Government Television footage of the arguments does not show Taylor sleeping, though the camera is not trained on him at all times."
• In addition to the claim that Taylor feel asleep, the ad also claims that he was voted the worst judge on the court by some attorneys.
• That claim is "based on a Michigan Lawyer's Weekly online poll. The Michigan Republican Party says only 77 attorneys responded to the survey and they self-selected themselves, so the poll wasn't scientific."

Ballot initiative TV spot

The Michigan Democratic Party aired an ad about Taylor's vote to remove a ballot initiative from the ballot.

Billboards

The Progressive Women's Alliance, a group that has endorsed Hathaway, has purchased bus billboards in the Grand Rapids area that tacitly imply Clifford Taylor is to blame for a recent University of Chicago study that says Michigan's high court is the worst in the nation. The study alluded to in the billboards is an unfinished white paper. Critics of the ads say the study covers Taylor's early years, from 1998-2000, on the bench--not his time spent as a more senior justice or as Chief., Furthermore, the so-called "Engler Four" which is often criticized as the conservative bloc on the court includes Justice Corrigan (joined the court in 1998), Justice Markman (10/1/99) and Justice Young (since 1999).

2008 PWA ads

See the unfinished study that the Progressive Women's Alliance billboard refers to.

A note on the dates:

We use three measures of quality: productivity, influence, and independence. We apply these measures to a data set consisting of the decisions of all the judges of the highest court of every state for the three years from 1998 to 2000....We use these years so that we can compile enough out-of-state citations to provide for meaningful comparison (up through 2006). Unfortunately, many judges on the bench in the period have retired, and many judges on the benches today are new. Nonetheless, our ranking is relatively comprehensive.

Excerpt from concluding remarks:

Many people are uncomfortable with rankings. They argue that rankings unavoidably disregard important aspects of the ranked institution’s performance and encourage people to compete with respect to only measurable aspects of performance. Competitions to perform well on rankings then result in a downward spiral as institutions neglect important but hard-to- measure aspects of their missions in order to improve their rank.

We agree that rankings can be misused, but as far as state courts are concerned, the genie is out of the bottle. Given the dominance of the U.S. Chamber of Commerce surveys, and significant questions about their usefulness, new rankings should be encouraged rather than shunned. The challenge is to construct performance measures that are useful and accurate. We have built on earlier work, and have no doubt that others will be able to improve on our measures.

Role of Democratic Party

The Michigan Democratic Party has identified Justice Taylor as one of its chief targets for 2008.,,,,,,,

The Taylor campaign says opposition to the chief justice is motivated by Taylor's fidelity to judicial restraint. In abiding by that principle, there has been a reduction in excessive litigation within the Michigan court system. In turn, the trial lawyer business has slowed. Ergo, the community of trial attorneys in the state supports efforts to remove Taylor from office.

Doug Guthrie of the Detroit News says that another motivation for the Democratic Party interest in the race is that the 2010 legislative re-districting battle is right around the corner. The re-districting plan state legislators come up with after the census "...to a great degree, determines the state political map -- and inevitably ends up in the courts."

Obama literature on Hathaway

On October 13, 2008, in an address to voters in Houghton, Diane Hathaway hoped to gain more support from the excitement around Democratic Presidential candidate Barack Obama's popularity by informing her audience that Obama's Michigan campaign literature urges voters to pick Hathaway over incumbent Chief Justice Clifford Taylor.

In explaining why the supreme court is important, Hathaway told voters, "The supreme court sets the (legal) precedents for the state."

Democrats allege sexism

After Taylor referred to himself as "one of the boys" on State Senator Tom George's cable show, the Michigan Democratic Party lambasted him for sexism in an August 25th press release.

Ballot initiative

Hathaway endorsed the Reform Michigan Government Now (RMGN) ballot initiative earlier in 2008. After supporters of the initiative had collected signatures to place it on the ballot, a lawsuit was filed against RMGN by Citizens Protecting Michigan's Constitution, who said that it violated the state's laws governing how many different subjects or topics one initiative could address. The initiative proposed reforms to the executive, judicial and legislative branches of Michigan's government and was 19,000 words long.

The lawsuit was heard by the Michigan Court of Appeals, which ruled that it should not appear on the ballot. In its two-page order, the appeals court said, "the initiative petition is overreaching, of a reach and expanse never before seen of any constitutional initiative in Michigan's long history. It proposes fundamentally to redesign the very framework of the Michigan Constitution of 1963."

Supporters of RMGN appealed that decision to the Michigan Supreme Court which by a 6-1 majority upheld the lower court's decision.

The state Democratic party decried the court's decision to keep it off the ballot as judicial activism, while opponents of RMGN, such as Michigan Chamber of Commerce vice-president Bob LaBrant applauded the court. LaBrant said, "The Supreme Court made it crystal clear — you cannot cram 36 changes into the constitution in a single proposal",,

Pundits in Michigan who could normally be counted on to defend a citizen initiative were in short supply due to the discovery of a PowerPoint presentation on a United Auto Workers Web site which indicated in stark, partisan terms that the proposal was motivated by a desire to ensure Democratic control of state government.,,

Polls and the horse race

A September poll covering September 15-20 was conducted by the Marketing Research Group (MRG) and Inside Michigan Politics. The results suggest that nearly 70% of Michiganders would enter the voting booth tossing coins for Diane Hathaway and Clifford Taylor as the two battle for Taylor's seat on the Michigan Supreme Court. Hathaway had a one percent lead over incumbent Chief Justice Taylor; they appealed to 15 percent and 14 percent of voters, respectively.

Paul King, director of research services for MRG, "speculated that Brewer’s shots at Taylor may be responsible for Taylor’s poorer-than-expected showing in the poll." Bill Ballenger, editor and publisher of Inside Michigan Politics (and a former Republican Michigan state senator and representative) suggested, "Justice Elizabeth Weaver’s constant sniping at Taylor and the rest of the 'majority of four' (Justices Maura Corrigan, Robert Young and Stephen Markman), has prompted 'internecine squabbling,' which has 'given the court a black eye.'"

MRG surveyed 600 (presumably) registered voters.

Effect of McCain's retreat

Michigan Republican Party Chairman Saul Anuzis comments that Republican Presidential nominee John McCain's choice to pull resources from the Great Lakes State complicates Chief Justice Clifford Taylor's Michigan Supreme Court re-election bid. One Republican lobbyist speculated that this would free up Democratic resources to concentrate on Diane Hathaway's quest to unseat the eleven year incumbent. Taylor supporters, however, suggest that his incumbency designation will help put Taylor over the top.

Philosophical differences

Four justices on the current court -- Taylor, Markman, Young and Corrigan) -- are sometimes known as the Engler Four. They have voted together in a series of notable 4-3 decisions on the court. Critics say that these justices are engaging in judicial activism, while their supporters say that the four are operating from a philosophy of judicial restraint. The confusion comes about because the Engler Four has on occasion overturned decisions made by the court in the 1970s. A series of decisions made by the court in the 1970s are noted for having overturned established precedents: Michigan Supreme Court decisions overturning precedent.

From the point-of-view of supporters of the Engler Four, these justices are clearing away the weeds of an overly-activist court in the 1970s, while opponents of the Engler Four see the current majority on the court as itself engaging in activism.

Forum featuring candidates

The Open Society Institute, a George Soros operation, is sponsoring a three-part forum in conjunction with the League of Women Voters entitled, "A Fair and Impartial Michigan Supreme Court." The forum began on October 1, 2008, with follow-up performances to be held on October 8th and 29th. The forum is also sponsored by the Joyce Foundation.

Candidates highlight differences

Hathaway hopes to win over would-be Taylor voters by convincing them that Taylor lives to hand out rulings that ruin the lives of every-day citizens. In so doing, Taylor argues that Hathaway has made her campaign about being "for" and "against" Michiganders.

"I'm not 'for' anybody," Taylor said. "This court isn't here to favor corporations or working people or Democrats or Republicans. It's a court of law. What she is telling people, by her very criticism of me, is she doesn't want to be that kind of judge — that she wants to be 'for' somebody. This is a court which understands the judicial role is different than the legislative role — that we don't make laws, we interpret them. Far too many courts think they get to make the laws."

Justice Taylor spoke recently and discussed the accomplishments of the Michigan Supreme Court.

Taylor has also previously said Hathaway is no "legal titan," and that she is a "placeholder with a popular Detroit electoral name."

Effect of ballot design

The Michigan Supreme Court race is listed on the second page of many Michigan ballots; as a result, the Hathaway campaign is stressing the importance of her supporters making sure that they have voted the full ballot. Her campaign slogan, "Vote all the way; Vote Hathaway" is intended to remind prospective voters to fill out the entire ballot.

Former Candidate: Deborah Thomas

Deborah Thomas was unsuccessful in her bid for the 2008 Democratic Party endorsement for the Michigan Supreme Court. Democrat delegates voted to run Judge Diane Hathaway against Chief Justice Cliff Taylor instead. Thomas, a current Wayne County Circuit Court judge (since 1994), ran for the Court before, in 2004.

Democrats skeptical

By the end of July, the Democratic Party had made it clear that Cliff Taylor was one of their top targets, however, Democratic leadership was reluctant to endorse Judge Deborah Thomas's campaign. Earlier in 2008, former Democratic Governor James Blanchard was rumored to be carrying the Democratic mantle against Taylor. Both Blanchard and the Democratic nominee in 2002, Marietta Robinson, decided not to run against Taylor. As a result, for a long period, Wayne County Circuit Judge Deborah Thomas was the only contender. However:

b]oth Democratic Party elders and union leaders [were] reportedly skeptical of fielding Thomas as their standard-bearer against Taylor and [were], sources [said], in a desperate search for another court candidate to nominate at their September convention.

Judicial philosophy

“The Courts belong to the people. The people must be involved in the Courts. The Courts must continue to protect the rights of the people and insure that the members of our free society enjoy life liberty and the pursuit of happiness in a safe, healthy, and predictable environment where justice for ALL the people ALL the time is the standard ALL the time."

Controversy over procedures

Some Thomas supporters questioned Diane Hathaway's victory after she won the Democratic Party's Supreme Court nomination by a slim margin. Hannah Donigman of the West Oakland County Democratic Club (and the state's 11th District) said:

“We just didn’t like the way the whole vote was conducted. It was very shabby. We suggested a vote by credentials or by paper ballot, but instead the vote in our district was taken by a show of hands, with Hathaway supporters from outside the district standing by with her signs. We suspect some of them held up their hands as well.”

Even though rules for voting specified that "credential cards shown by hand voting shall be used except where a roll call vote is properly requested or required,” many delegates just voted by show of hands. Mark Brewer, Democratic Party chairman, said that the procedure was up to district chairs, and as such could have called for a roll call. That never happened.

Criticism continued to dog the nomination. “It appears to me that the identity of the ‘approved’ candidate is kept a big secret until the week before the convention, or thereabouts, and then everyone is expected to fall in line,” said M. E. Miller of West Michigan Rising and board member of the party’s Justice Caucus in a weblog. “Imagine if we picked our Presidential nominee by some unknown small group vetting and announcing who it is. I highly doubt it would have ended up being Barack Obama.”

Another observer noted, “I could tell Judge Thomas was getting the shaft when I arrived. There were people who were visiting in district sections that should not have voted. We are not tribes, we are American citizens. We are supposed to be one.” According to The Michigan Citizen, delegates could be heard murmuring that they "could not vote against labor,"--specifically against the state's powerful United Auto Workers and Michigan Education Association blocs.

Newspaper Q&A

See: Voter Guide Toolkit 2008

In this candid question and answer session with the e-thePeople.org group, Thomas answered questions about her qualifications, child support payouts, the current Supreme Court, and donations from law firms.

External links

• Re-Elect Cliff Taylor
• Judge Diane Marie Hathaway for Supreme Court
• Deborah Thomas for Supreme Court
• Rich Robinson testifies against Taylor
• Lawyers Weekly conducts a survey on how Judge Deborah Thomas would fair in a race against Justice Taylor
• Michigan Courts: Overview
• League of Women Voters: 2006 Voters Guide
• State Dems nominate slate, razz Republicans
• Judge to announce run for state Supreme Court
• Michigan GOP picks candidates for Supreme Court, education boards
• Michigan GOP scrambles after McCain pullout
• State Supreme Court race doesn't meet hype
• 16-year court veteran running for Supreme Court
• Op-Ed: Many obstacles for Hathaway
• Michigan election round-up
• Dailies weigh in with MSC endorsements
• Michigan Obama absentee ballot flyer sends people to phone sex line
• Dem booster Stryker outspends GOP in state
• Detroit News: Voter Guide: Michigan Supreme Court
• Groups outspend high court candidates

References