The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful. Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored. I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework. [Someday, I'd like to meet Kevin and shake his hand.] That doesn't mean I agree with him, however. In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.
In a recent post, Kevin essentially made this argument: We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly. Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.
I will address Kevin's observations about Mary Beth Kelly in a near-future article. At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority. Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.
Still, Kevin raises a valid point, but it doesn't carry the day. He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record. That's not an exchange I'm willing to make, for a number of reasons. First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young. Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge. Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims. Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.
In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless. SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger." Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."
The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness." The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters. This requirement was ignored by the Court of Appeals.
In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]"
As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.
The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.