Politics & Prejudices
Last chance for Snyder
State supreme court appointment will show the guv's true colors
Published: January 16, 2013
OK, eternal optimists. Is Gov. Rick Snyder in any way a principled, good-government moderate, or is he just a slightly different and tieless version of a partisan hack GOP politician?
Stop laughing. Remember that old rule about being innocent until proven guilty beyond a reasonable doubt, etc. I admit the evidence isn’t encouraging for the Snyder-is-a-moderate crowd. After all, shoving right-to-work through a lame-duck session of the Legislature in a single day isn’t too moderate.
Screwing over the right of the teachers union to collect dues, and signing legislation that allowed motorcyclists to not wear helmets have all the familiar hallmarks of right-wing crazy.
But there’s a final test coming up, one that ought to either give us new hope, or seal the verdict. Justice Diane Hathaway is due to “retire” from the Michigan Supreme Court next week.
Hathaway is retiring somewhat in the way the Cuban dictator Fulgencio Batista retired, just before Fidel Castro’s troops burst into the palace. Now, she too deserves the famous presumption of innocence, but if she did what the federal government and the Judicial Tenure Commission say she did, she may well be the biggest slimeball ever to disgrace the court.
Hathaway is a Democrat, by the way; never let it be said that this column shies away from whacking the corrupt of either party. Allegedly, she and her husband temporarily transferred two homes they owned to two of his kids by a previous marriage. They did this so that a bank would write off about $600,000 they owed on yet another home when they sold it.
They apparently wanted to qualify for a hardship exemption, which was then granted. This happened in 2010, by the way, when she was sitting on the court as one of the highest guardians of the integrity of the state’s laws. Inspiring, yes?
After the bank wrote off the mortgage, the kids then speedily transferred the other properties back to Hathaway and her husband, fellow lawyer Michael Kingsley.
WXYZ-TV news, to its credit, blew the whistle on her last May. The feds followed in November, when the U.S. government charged that Hathaway and Kingsley “systematically and fraudulently transferred property and hid assets,” to pretend they didn’t have the money to pay their mortgage.
The government then attempted to seize one of the homes, a cushy pad in Florida. Last month that action was temporarily stayed. But last week the Judicial Tenure Commission filed the most damning complaint I’ve ever seen against any judge, sitting or otherwise.
Essentially, it says she violated federal and state laws against fraud, broke federal money laundering and tax laws, and was guilty of huge ethical failings, including “irresponsible or improper conduct which erodes public confidence in the judiciary,” and a “failure to respect and observe the law.”
If that’s too subtle, the complaint adds that she “exposed the legal profession to contempt, acted contradictory to justice, ethics, honesty, or good morals.”
There’s a lot more, but that’s a fair sample of the worst of it. Complaints like this are normally followed by criminal charges, and we have to hope that her “retirement” isn’t some kind of a plea bargain. (One way you could tell they likely have the goods on Hathaway was that, when the scandal broke, Democratic State Chair Mark Brewer ran and hid.)
Republicans, by the way, are demanding she forfeit her state pension, and if found guilty, that certainly seems right.
But now … what about her replacement? Michigan’s Supreme Court has long been viewed as pretty much a laughingstock, a holding pen for partisan hacks. One infamous University of Chicago study, in 2008, rated it dead last among all state courts when it comes to freedom from partisan bias.
The court had a 4-3 Republican majority, and the governor has the right to replace Hathaway as soon as she’s gone. Virtually everyone believes he’ll pick a fellow Republican, which will give his party a rock-solid 5-2 margin.
Normally, the governor just picks whomever he — or those who whisper in his ear — wants. But last year a truly bipartisan, blue-ribbon panel outlined a better way.
The Michigan Judicial Selection Task Force, a body whose honorary chair was former U.S. Supreme Court Justice Sandra Day O’Connor, the first woman ever on the nation’s highest court, spent a year studying how to reform our courts.
The two working chairs were a GOP federal judge, James Ryan, who sits on the U.S. Court of Appeals, and Marilyn Kelly, a Democrat and former Chief Justice of the Michigan Supreme Court, who just retired from the bench on New Year’s Day.
The task force spent a year studying the Supreme Court and considered carefully what should happen when a justice leaves before his or her eight-year term is up. They offered an excellent plan: The governor should name an Advisory Screening Commission, made up of lawyers and non-lawyers.
They would look at anyone who wanted to be on the court, and hold public hearings. Eventually, they would “recommend to the governor a short list of three to five highly qualified applicants.” The governor would then pick any one of those he wanted. “The task force respectfully asks Governor Snyder to adopt this practice in his current administration,” the 22 members concluded — unanimously.
That’s something Snyder could do with a simple executive order. But will he? So far, he hasn’t shown any sign of it.
He did meet with the task force to discuss this issue last year, but was “politely noncommittal,” Justice Kelly said.
Sadly, few in Lansing expect Snyder to adopt judicial reform, even though this was a completely bipartisan recommendation, and no state in the nation needs a better and less political image than Michigan’s Supreme Court.
Instead, most speculation centered around his naming Oakland Circuit Judge Colleen O’Brien, who ran for the Supreme Court last year — and was thoroughly rejected by the voters barely two months ago. She finished dead last among the major party candidates, behind the two who won and even behind one Democrat who lost. She got nearly a million fewer votes than Mitt Romney, who also lost badly.
> Email Jack Lessenberry