Chief justice says Supreme Court needs to be more ‘nonpartisan’
McCormack talks ‘Scalia-Ginsburg’ relationship with Young
Bridget McCormack, 2018 | Facebook
For the first time in a decade, a Democrat is leading the Michigan Supreme Court with Bridget McCormack. That’s even more remarkable since the court still has a 4-3 GOP majority.
The new chief justice told the Michigan Advance in an in-depth interview on Friday that she believes the court ultimately “needs to be more nonpartisan.” McCormack, who’s also a University of Michigan law professor, added that the dynamic between the seven justices is “pretty friggin’ great.”
McCormack, a longtime attorney who practiced before the Supreme Court before joining its ranks, garnered national headlines for recruiting the cast of “The West Wing” for a 2012 campaign ad. She did have an in, as her sister, Mary McCormack, played Kate Harper on the show.
The Supreme Court has come a long way since GOP former Gov. John Engler remade the court with his so-called conservative “Gang of Four.” The Republican-nominated majority of Maura Corrigan, Cliff Taylor, Stephen Markman and Robert Young dominated the High Court during the first decade of this century, which was marked by highly partisan decisions and bitter backbiting.
Former Justice Elizabeth Weaver, a Republican-turned-independent, even wrote a juicy tell-all, “Judicial Deceit: Tyranny and Unnecessary Secrecy at the Michigan Supreme Court,” before her death in 2015.
Republicans have dominated the court for two decades — save for 2009-10, when Democrats gained a slim majority with the election of Diane Hathaway, who ended up in prison for a bank fraud conviction.
GOP former Gov. Rick Snyder was able to remake the court. He nominated three current justices — David Viviano, Brian Zahra and Elizabeth Clement — as well as two others — Joan Larsen, who now sits on the Sixth Circuit appellate court, and Kurtis Wilder, who lost his election in 2018.
But the court is a much more collegial place today, said McCormack. To that end, after her unanimous election as chief justice this year, she appointed Viviano in a new position as justice pro tem. She also has a close relationship with Young, which has been compared to the dynamic of U.S. Supreme Court Justice Ruth Bader Ginsburg and her late colleague, Antonin Scalia.
McCormack discussed the possibility of serving on the federal bench, running for re-election in 2020, and yes, if “The West Wing” cast might reunite for her campaign.
The Advance also talked to McCormack about the historic nature of being one of four female executives in Michigan, how women have been able to break through the judiciary’s glass ceiling, the court’s docket for this term, and the most significant case she’s presided over. That will run on the Advance later this week.
The following are excerpts from the interview:
Michigan Advance: You came onto the court in 2013. How has it changed — not just in terms of the justices on the court, but the way that you work together?
McCormack: It’s a great question. I don’t actually think you can separate those two. I didn’t mean that to call any specific person out, but the thing about a multi-member court, any multi-member court, is when you make every decision by committee — which we do; we decide literally everything kind of by committee — any single member of that committee changes the dynamic and how the whole thing works.
When I arrived, and shortly after I arrived, David Viviano was appointed, so we got there close to about the same time. Then we had two years of no changes. … Two years of the same people, we all kind of felt each other out, got to know each other, and had a pretty good working relationship — which isn’t to say that since then, we haven’t at all. We had two stable years there where everybody had their individual relationships and that was that.
Then Richard Bernstein replaced Mike Cavanagh [in 2015]. Shortly after that, Joan Larsen replaced Mary Beth Kelly. Then Kurt Wilder replaced Bob Young, and Beth Clement replaced Mary Beth. … We have had a lot of personnel changes in the last six years, and I think the fewest in my first two years.
Each time a member changes, the dynamic changes just because that’s the way it is, but I would say that … since I’ve been on the court, the collegiality and working relationships have been, compared to what it sounds like it was like before, pretty friggin’ great. I think I arrived at a fortunate time. As you know, right before I arrived, Brian Zahra and Mary Beth Kelly were both pretty new. They were new in ‘10. So there’s been a lot of turnover in the court after having no turnover for a long period of time.
Michigan Advance: The court was notoriously partisan in the aughts, especially with the so-called ‘Gang of Four’ or the ‘John Engler majority’ of Maura Corrigan, Cliff Taylor, Stephen Markman and Robert Young. It seems like that’s changed, even with Republican majorities on the court during [former Gov.] Rick Snyder’s tenure. Can you talk a little bit about that change and how that came about?
McCormack: Yeah, I never served with Maura or Cliff. I obviously served with Bob and still serve with Steve, but I didn’t serve in that period. I’m not naïve. I know a lot about it, and I was a lawyer who practiced in the court, and I read the papers. I will say that when I arrived, the court was not behaving that way. …
Maybe it’s very, very Pollyanna-ish … I just assumed that when I showed up and had good arguments, people were going to listen to me because they were good arguments about the law. To be honest, that turned out to be true. Bob Young loved every good argument I had to make — not say I always convinced him. Sometimes I did, but he certainly enjoyed the give and take. He seemed almost excited that somebody was showing up and wanted to talk law.
That had already changed, I think, by the time I arrived. Maybe Mary Beth and Brian were a part of that. Turnover is sometimes what an organization needs [laughs] after a while, just to mix things up a little bit.
Then you’re right. … Gov. Snyder, he also appointed justices who really … I mean, Joan Larsen is a Republican, no doubt about it. But she was, more than anything, a judge and had no relationship to the state [Republican] party or anything like that. She’s a conservative, but … she was there just to be a good judge. We’ve had a lot of, I think, people on the court nominated by both parties, or appointed by Snyder, who have been there since I’ve been there trying to show up and just get the job done.
Michigan Advance: You and Robert Young have definitely had a good relationship. You’ve done speaking engagements together with ‘The Bob and Bridget Show.’ Your relationship has been compared to Ruth Bader Ginsburg and the late Antonin Scalia on the Supreme Court. Do you think that’s a fair comparison?
McCormack: From what I understand about Justice Ginsburg and Justice Scalia, they were very, very close personal friends. I know that from people who know both of them well. I have a lot of friends who clerked for both of them. They were very close personal friends and their spouses [were]. Honestly, I consider Bob a good friend of mine.
Obviously, Justices Ginsburg and Scalia didn’t agree about every legal question that came to the court. In fact, they often disagreed, or at least, in some famous cases, disagreed pretty dramatically. Bob and I have certainly disagreed about legal questions, but I would consider him a friend for sure. I believe he wishes me the best in leading the court.
In fact, he used to use me in a lot of administrative matters because I think he would be the first to say that he thinks that I take the administration part seriously. He appreciated that. Yeah, I think we have a somewhat similar … I don’t know enough about them, but we certainly are personal friends.
Michigan Advance: Why did you decide to create the new justice pro tem position for David Viviano?
McCormack: Every court has a pro tem. We appoint chief … judges in the courts throughout the state. The Supreme Court actually does that, but then the chief judge of those courts picks their leadership team and they pick their own pro tem. They do it because there’s just a lot of work to go around. It’s also often makes sense to have somebody other than just the chief understanding and able to understand how decisions are made and how the administrative arm of the court is run and be able to step in and help make those, or even make those when the chief is not available.
I guess I wasn’t convinced why those same issues weren’t true of our court. If anything, maybe more true. We run a very big administrative office, and I feel like I could use all the help I could get. I appointed Justice Viviano so he has a formal role in that administration, but I will tell you I make regular use of Justice Clement, Justice Bernstein, already Justice [Megan] Cavanagh … and Justice Zahra. I’m not limiting it to Justice Viviano. I just wanted somebody officially to be part of the administrative team.
Michigan Advance: Was it also a bipartisan gesture?
McCormack: Yeah. Honestly, I think the court needs to be more nonpartisan than bipartisan, but to the extent that bipartisan moves us in the direction of nonpartisan, I think it’s important for the public to understand that that’s the way the court operates and why it’s different from the other branches of government. I guess it’s a nice upside that David was nominated by the Republican Party in the two elections he ran, but frankly, he’s just an energetic and careful, enthusiastic administrator, so those are his main attributes. I think it’s a nice byproduct that he’s also from the other party.
Michigan Advance: Do you have any interest in serving on the federal bench or in any other higher office?
McCormack: I don’t. I really don’t. Honestly, the state courts is actually where most law happens. Most law is decided, 95 percent of civil law and 95 percent of criminal law, is decided in the state courts. More important than that, as I said before, the ability to have a positive influence on how the trial courts throughout the state interact with the public, and as I said before, public who usually isn’t there for some happy occasion. They’re there … usually at one of the hardest moments in their lives, they show up at our courthouse doors. The ability to have an influence on how those courts do business with people who are facing really difficult times, to me, is about as satisfying as public service can get. I think I found exactly the right place, and I’m good. I’m good here.
Michigan Advance: Do you plan to run for re-election in 2020?
McCormack: Yeah, I do. I feel like I have some great colleagues and a lot to try and get done, given that I’m fortunate enough to serve as the chief justice for a few years, and I want to make sure I can do as much of it as possible while I have the opportunity to do it. If I don’t run in 2020, that doesn’t give me a whole lot of time, so I think so.
Michigan Advance: You famously had ‘West Wing’ actors, like Bradley Whitford and Martin Sheen, campaign for you in 2012. Could we possibly see that again in 2020?
McCormack: I think we could. Yeah, I think we could.
Michigan Advance: You’re in the middle of negotiations on it?
McCormack: I’m feeling bullish on my chances because I have a pretty good in with those guys. [laughs]
Martin Sheen has actually been to Michigan a couple times in connection with our problem-solving courts. Martin Sheen was a huge advocate for drug courts before anybody else was. Literally, like, 25 years ago, Martin Sheen started advocating for drug courts nationally. He’s been honored by the national organization that supports drug courts. In fact, I went to that ceremony a couple of years ago in Orange County. He never talks about it. He doesn’t ask for any credit for it, but the guy has done more for promoting drug courts than anybody else I know. It’s pretty cool.
Melissa Fitzgerald, who also was on ‘The West Wing,’ you might remember, she is the executive director of an organization called Justice for Vets, which advocates for veterans treatment courts nationally. She literally left acting — [she was a] very successful actress on ‘The West Wing’ — and leads the national organization that advocates for veterans treatment courts. She’s been to Michigan a number of times … to come to graduation ceremonies and do some trainings on veterans treatment courts.
In addition to helping me get elected, ‘The West Wing’ [cast] has done some pretty cool stuff for what I think is the very best of what we’re doing in our trial courts, which is our treatment court work.
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