Please, Ms. Weaver, Just Retire Already!

Remember the music from Jaws that heralded the shark's return?  I hear that music in my head just before Elizabeth Weaver launches another one of her loony broadsides against the Supreme Court and the process for selecting justices.

The latest is her harebrained idea for choosing justices.  You can find it here.  After taking advantage of the current system for two terms, Ms. Weaver has decided that the entire process has to be scrapped (this will, of course, require that our Constitution be amended).  Her notion is that, instead of party nominations, all Supreme Court candidates would have to file nominating petitions, use public money only, and be elected by district, with the state being divided into seven districts.

Why?  Well, because "people in varying parts of the state look at life in different ways" and all current members of the Court live in "the Detroit/Lansing beltway." 

First, I-96 is not a beltway.  It does not circle Detroit or Lansing.  A corridor?  Maybe, but definitely not a beltway.  Ms. Weaver's incorrect use of the term "beltway" reflects her sloppy thinking while on the Court.  All members of the Court are elected by all of Michigan.  It's not a "Court of Representatives," it's the Michigan Supreme Court, deciding cases for the entire state. 

Second, the Court does not exist to look at life; it exists to render decisions on the law.  "Looking at life" is a hallmark of an empathy court, which makes decisions based on the whim of the moment, not the will of the people as expressed by its legislature and in its Constitution.

In the event of a vacancy, Ms. Weaver channels the following proposal:

•  A 30 to 40-member "Qualifications Commission" would meet and provide two non-binding recommendations to the governor.
• The Commission would be comprised of "all stakeholders in the justice system.  For example, representatives from labor, business, law enforcement, doctors, lawyers, prosecutors, environmental groups, corrections, education, insurance, local government and the like. Each organization would choose its own representative."
• The governor can choose one of the two recommendations, or not.  But, if not, the governor must justify the appointee in writing, "giving written reasons why her or his appointee is the best choice[.]"
• The Senate has 60 days to hold a public hearing on the governor's nomination.  If the Senate takes no action, the appointment becomes effective.  If the Senate rejects the nominee, the whole process starts over again.  If for some reason the process doesn't restart, the vacancy gets filled at the next general election.

Can you imagine the mischief in this system?  How will the Commission be chosen?  Who decides which group represents which segment of "stakeholders in the justice system"?  How long will it take to establish a commission and come up with agreement on two nominees?  How long will vacancies remain open?  It would be a nightmare.

Ms. Weaver also argues for "public scrutiny" of the "inner workings on our Supreme Court."  It's not clear what she means by this, particularly since she also concedes that "there are certain things that must be done at the court in private."  Where does she draw the line?  She never says.  Presumably, since she secretly recorded and then released selected portions of confidential Court deliberations, she values neither confidentiality nor the need for frank and open discussions during case conferences.

The notion of public deliberation may well lead to greater divisions over the Court's decisions. David Stasavage of the London School of Economics did an interesting study of public versus private deliberations in representative democracies.  He concluded in part:

[P]rivate deliberation may, in many instances, actually do more to reduce polarization of opinions in society than will public deliberation. This runs contrary to the common suggestion that public discussions will produce greater social consensus. When members of society have divided opinions about the effects of a policy, if “responsiveness” is the unique equilibrium under public deliberation, then representatives will articulate the opinions of their constituencies, but the public will not actually learn anything from observing public deliberation, because it knows that representatives are simply mirroring the attitudes of their constituents. In contrast, when an “independence” equilibrium prevails, which is more likely to be the case under private deliberation, then even if it does not observe the actions of individual representatives, the public will know that the policy outcome has depended upon the private information held by representatives.  As a consequence, members of the public will be able to draw inferences from the policy outcome, and they will revise their beliefs about which policy outcome is preferable. If beliefs are initially polarized, then they will tend to converge.

It would be a shame if anyone took Ms. Weaver's proposals seriously.  There will be some, of course, but our time would be much better spent if we focus on re-electing the rule-of-law judges currently on the Court and electing rule-of-law judges to all positions in the future.

Ms. Weaver, thank you for your service.  Now, please, go away.