Who are the NERD fund donors Mr Snyder?
O'Brien - A Supreme Gamble
By Kevin Rex Heine, Section News
Conservative Republicans, at least those over 25 years old, may remember one of President George W. Bush's biggest political blunders. Her name was Harriet Miers.
If you are not yet old enough to run for Congress, well, draw near. I'll tell you about the tumultuous summer of 2005. And I'll tell you why that matters to Rule-of-Law Michigan Republicans in 2012.
Harriet Miers was the White House Counsel during the "W" years. In July of 2005, Supreme Court Justice Sandra Day O'Connor announced her intention to retire. Bush appointed Miers to lead a search committee to find a replacement for O'Connor. Bush chose a well-regarded lawyer named John Roberts to replace her. But before Roberts could be confirmed, Chief Justice William Rehnquist died of thyroid cancer. Bush withdrew Robert's name and re-nominated him for Chief Justice. He then surprised everyone and nominated Harriet Miers to Justice O'Connor's seat.
Here in the Heartland, we heard the usual Pavlovian response from Washington liberals and Democrats: they spoke about something they call the Radical Republican Agenda. Meirs' will destroy the middle class, murder seniors, and pour sugar in the gas tank of Medicare. She'll hold poor people's heads under water while raising their health insurance rates.
Of course, we eventually tuned them out. We can only take so much angry, mindless pabulum.
But whispering in the winds blowing up from Washington D.C., we began to hear different voices. Just as angry, but forceful and well argued. It came not from liberals, but from conservatives. "Who is Harriett Miers?" they said, and "Where is her record? How do we know she is conservative?"
White House strategists winked. "Trust us," they said. "If we nominate a judge with an open, verifiable record, Democrats will pore through her opinions and cherry pick a few cases, or even a few sentences from a few cases, to make her look bad. Remember what happened to Judge Bork? The last thing we want is someone with an open, verifiable record."
Yet the conservatives were not buying it. They spoke worryingly of another such Presidential choice for the Supreme Court: Justice David Souter. The October 15, 2005, Washington Whispers column in U. S. News and World Report said this (emphasis in the original):
In the fight over Supreme Court nominee Harriet Miers, a lot of really nasty stuff has been said about Justice David Souter as critics try to draw a sharply negative comparison with President Bush's pick. Namely: Souter was a Republican unknown whose political friends conned former President George H. W. Bush into naming him to the court, where he blossomed into an embarrassing moderate liberal. Conservative Phyllis Schafly sneers that Miers is a "female Souter."
Washington Whispers can be a little flippant. But this lack of a verifiable record was very serious business, as the Washington Post confirmed:
"With so much at stake, to many of us it seems ill-advised to nominate somebody that we're then told we should have faith in, when there isn't any evidence of intellectual rigor being applied to these contentious issues," said conservative activist Gary Bauer. "There are probably seven to eight names that have been looked to, have written wonderful decisions that are strong intellectually, compelling in their presentation. They are the kind of people you want to look to if you want to try to move the legal culture in America."
By the end of October, 2005, Ms. Miers wrote Bush and asked him to withdraw her name. It wasn't the Democrats who killed her nomination; it was the conservatives who, having been burned before (because David Souter was also supposedly a rock-solid conservative . . . without a track record), refused to "trust" the White House.
In 2010, Bob Young was up for reelection to the Michigan Supreme Court. Justice Betty Weaver chose to not seek the Republican nomination. (Yeah - that's another story altogether.) So that created a vacancy. Bob Young handpicked a Juvenile Court judge from the Wayne County Circuit Court, Mary Beth Kelly, as his running mate. She had a nice Irish name, and she was from Southeast Michigan. She had no record. But Michigan Conservatives were not as sharp as Gary Bauer. Justice Young, so it seems, is a conservative. So we trusted him. Mary Beth is his choice. We'll go with her.
What was Mary Beth Kelly's record? Who knows? Circuit judges rarely issue written opinions. And when they do, they get tucked away in some court file. They're "public" in the sense that the public can access them. But the public can only find them if they have a case number or the name of a party to the case, and are willing to cover the FOIA expenses. There is simply no open stream of opinions flowing from a circuit court judge like there is from a Court of Appeals Judge or a Supreme Court Justice. For all practical purposes, a Circuit judge has no open, verifiable record.
Although in 2010, Court of Appeals Judge Jane Markey was also seeking the nomination, a judge with "written wonderful decisions that are strong intellectually, compelling in their presentation," we went with Mary Beth Kelly. We trusted. We did not verify.
Where did this get us? Mary Beth Kelly was the swing vote and author of the controlling opinion in the Stand Up For Democracy case that has thrown the state into chaos. She ruled that petitions seeking to place on the ballot a referendum overturning the Emergency Manager Law, petitions containing signatures bought and paid for by public sector unions, complied with Michigan law. That immediately suspended the law: so the City of Flint, the Detroit Public Schools, the Highland Park Public Schools, the Muskegon Heights Public Schools, to name just a few, are thrown back into the corruption and thievery of the much desired (by unions and Democrats) "status quo." In so doing, she broke with her rule-of-law colleagues and sided with the empathy Democrats on the bench.
Is this surprising? Is this not surprising? I don't know. How does anyone know? SHE HAD NO TRACK RECORD! That's the whole point. There was no record to read, nothing to vet.
For what my opinion may be worth, no Circuit Court judge should ever be elevated directly to the Supreme Court without first serving at least one full term on the Court of Appeals, a court that issues hundreds of opinions a month, all of which are immediately open, and easily available to the public. It should also be noted that five of the current Michigan Supreme Court justices have previously served on the Michigan Court of Appeals bench (the only other exception being Diane Hathaway), so their records were open books as soon as they were originally nominated.
But now, not even a month after his 2010 running mate laid a rotten egg on the bench, Chief Justice Robert Young is asking conservative republicans to trust him again.
Justice Marilyn Kelly, Young's predecessor as SCOMI Chief Justice, cannot stand for reelection because she is over the age of 70. This creates another vacancy on that bench. Rather than reaching out to the runner-up at the 2010 convention, a COA judge with nearly 18 years of experience on that bench and a record that is readily available for public review (including the little fact that she's the third least overturned judge currently on that bench), Young is again attempting to elevate a Single-A ballplayer directly to the big show.
Judge Colleen O'Brien is a sitting judge on Oakland County's Sixth Circuit, a circuit that I am told is the busiest one in the state. Nevertheless, she is still a trial court judge, so figuring out what her actual judicial record is (and, by extension, what her jurisprudence philosophy is) will involve a rather time-consuming and prohibitively expensive fishing expedition through court transcripts going all the way back to November of 1998. I'm pretty sure there's no way that gets done before the state convention two weeks from now. Yet Chief Young is telling us to take his word for it that Judge O'Brien is a rule-of-law conservative.
David Souter, Harriet Miers, and Mary Beth Kelly are Exhibits A, B, and C for why no one, absolutely no one, rates a Supreme Court nomination without an "in the open" jurisprudence record to support that nomination. Why on earth would we want to take a chance that Colleen O'Brien won't become Exhibit D?
O'Brien - A Supreme Gamble | 13 comments (13 topical, 0 hidden)
O'Brien - A Supreme Gamble | 13 comments (13 topical, 0 hidden)