Eternal Vigilance -- The Battle for the Michigan Supreme Court and the Rule of Law

Once again, we find ourselves on the brink of another Supreme Court election, again featuring a distinct contrast between rule-of-law judges and the so-called "empathy" judges.  On the rule-of-law side, we have Brian Zahra, David Viviano, and James Redford.  The principal empathy candidate is Richard Bernstein.

All elections and races are important, but as the final arbiters of what will and will not be constitutional or enforceable, there is no race more important than the race for Justice of the Michigan Supreme Court.

Bernstein's candidacy is summed up well here.

To underscore the importance of the rule of law, I am reposting a piece that can be found in its original form here.  It illustrates how empathy judges decide however they want to, without regard for the law, for private contracts, or any other limits.  Empathy judging is an extreme danger to society, since it eliminates any reasonable expectations of how others will behave. For example, if contracts don't mean what they say, how can we rely on them?  The lessons of this piece are just as applicable today as they were when it was first posted.

Putting "The Rule of Law" in Perspective

This year's Michigan Supreme Court election will spotlight the "Rule of Law" issue. Voters will be asked to decide between Justice Robert Young and Judge Mary Beth Kelly (the Rule of Law judges) and Justice Alton Davis and Judge Denise Langford Morris (the "empathy" judges).

Simply described, RoL judges interpret the constitution, laws, and contracts by the plain meaning of the words used by their authors. Empathy judges, in contrast, interpret the same words in order to reach a desired result.

Here's a perfect example -- Elizabeth Weaver's parting gift to Michigan jurisprudence. The case is Shay v Aldrich, decided August 23, 2010. In short, the plaintiff sued five defendants, alleging that they had assaulted him. Partway through the case, the plaintiff settled with two of the defendants and signed two separate releases, each releasing a defendant "together with all other persons, firms and corporations, from any and all claims, demands and actions which I have now or may have arising out of any and all damages, expenses, and any loss or damage resulting from an incident occurring on September 8, 2004."

After the plaintiff signed these releases, the other defendants moved to dismiss the remaining claims, arguing that the plaintiff had waived them. The trial court denied the motion, but the Court of Appeals reversed. finding the releases unambiguous. The Michigan Supreme Court then granted leave to appeal and reinstated the claims against the remaining defendants, finding in a 4-3 opinion by Weaver that the plaintiff did not intend -- despite the clear language of the releases -- to waive any claims against the remaining defendants. The Weaver opinion equated "broad" with "vague" and permits the parties to use extrinsic evidence to introduce ambiguities into a contract, thus necessitating "interpretation" where there previously was none.

The impact of this opinion will not be limited to releases. Why should it be? Why are releases to be treated differently from every other kind of contract? Under the new Weaver rule, a contract means what it was intended to mean, regardless of what it actually says. Under the rule of law, contracts mean what they say, without an interpretive middleman in a black robe.

This Weaverizing of contracts is symptomatic of the elitist arrogance of the ruling class -- they know better than you do what you need and what you really mean. It is this arrogance that leads to Congress passing 3,000 page bills it hasn't read, doesn't understand, and has no intention of reading or understanding. Government power is thereby transferred to the bureaucracy, and the people are left with no option but litigation, hence the constitutional challenge to Obamacare. If we don't have the courts, we are lost.

In the July-August 2010 issue of the American Spectator, Angelo Codevilla published a brilliant article, America's Ruling Class -- And the Perils of Revolution. Please read it here. He describes the ruling class as considering itself "saviors of the planet" and "improvers of humanity." It is a penetrating, brilliant article.

A portion of Codevilla's article describes the interaction between the ruling class and the courts:

Disregard for the text of laws -- for the dictionary meaning of words and the intentions of those who wrote them -- in favor of the decider's discretion has permeated our ruling class from the Supreme Court to the lowest local agency. Ever since Oliver Wendell Holmes argued in 1920 (Missouri v. Holland) that presidents, Congresses, and judges could not be bound by the U.S. Constitution regarding matters that the people who wrote and ratified it could not have foreseen, it has become conventional wisdom among our ruling class that they may transcend the Constitution while pretending allegiance to it. They began by stretching such constitutional terms as "interstate commerce" and "due process," then transmuting others, e.g., "search and seizure," into "privacy." Thus in 1973 the Supreme Court endowed its invention of "privacy" with a "penumbra" that it deemed "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The court gave no other constitutional reasoning, period. Perfunctory to the point of mockery, this constitutional talk was to reassure the American people that the ruling class was acting within the Constitution's limitations. By the 1990s federal courts were invalidating amendments to state constitutions passed by referenda to secure the "positive rights" they invent, because these expressions of popular will were inconsistent with the constitution they themselves were construing.

By 2010 some in the ruling class felt confident enough to dispense with the charade. Asked what in the Constitution allows Congress and the president to force every American to purchase health insurance, House Speaker Nancy Pelosi replied: "Are you serious? Are you serious?" No surprise then that lower court judges and bureaucrats take liberties with laws, regulations, and contracts. That is why legal words that say you are in the right avail you less in today's America than being on the right side of the persons who decide what they want those words to mean.

As the discretionary powers of officeholders and of their informal entourages have grown, the importance of policy and of law itself is declining, citizenship is becoming vestigial, and the American people become ever more dependent.

So, the battle for the Michigan Supreme Court is not merely a contest for control of the Supreme Court. It is a fight to regain some measure of the rule of law, to maintain a bulwark against the whims of the ruling class and government bureaucracies, and, perhaps most importantly, to assert our independence as free citizens.

If we don't have the authority to govern our own affairs through written agreements, what is left for us?

Is Richard Bernstein Violating the Judicial Code of Conduct?

Ordinarily, I fast forward through commercials when I'm watching a program on DVR.  Sometimes, though, I'm not quick enough or I'm busy, and then I get to watch advertisements that remind me why I usually zip through them.

Yesterday, one of the commercials I saw by accident really caught my attention, but not in a good way.  It was a political ad for Richard Bernstein, who is running as a Democratic nominee for the Michigan Supreme Court.  At about the 14-second mark, Bernstein says:

Big corporations, polluters, and insurance companies have their high-priced lawyers, so let me be your judge.

Your wizard was astounded by this comment, so I quickly went to my copy of the Judicial Code of Conduct.  Right there, in Canon 7, part B, it clearly states:

(1)   A candidate, including an incumbent judge, for a judicial office:

*   *   *

(c)  should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.

So, what is going on in this commercial?  It is patently obvious that Bernstein is pledging that he will rule against big corporations and insurance companies.  Prejudging cases that are likely to come before the high court is the exact opposite of "the faithful and impartial performance of the duties" of Michigan Supreme Court Justice.

Perhaps this sort of inattention to the rules is to be expected from someone who has never been a judge and, according to the Michigan Courts website, has never appeared on a case in either the Court of Appeals or the Michigan Supreme Court.

Regardless of the cause, there is no excuse for a candidate so blatantly flouting the code of conduct governing the office to which he aspires.  This is a bad way to start, and voters would do well to make sure he doesn't get the chance to follow through.

"What the hell is going on out here?"

My apologies to anyone who might take offense at the famous Vince Lombardi exclamation in the title of this post, but I am amazed by the stuff I am seeing in advance of Saturday's Michigan GOP State Convention, particularly the stuff relating to Ron Weiser and Brian Calley.

I know Ron Weiser just a little, having had a total of about 30 minutes of conversation with him over the last two years.  I can't recall ever having a conversation with Brian Calley.  So, I am not writing this out of some long-developing bond with either man.

Against Weiser, people have dredged up the most inconsequential facts and attempted to turn them into some sort of indictment against a man we should all be foursquare behind.  Ron Weiser's contributions to the state and national Republican parties are monumental, and does anyone remember his pivotal role in making Michigan a freedom-to-work state?  Here is a man who has slaved tirelessly on behalf of Republicans -- all Republicans -- and has earned our respect, our loyalty, and our votes.

I have nothing against the other candidates, whom I also respect, but they should be denouncing these smear tactics, instead of remaining silent or, in at least one case, appearing to participate.

People are pretty familiar with the range of attacks on Calley, principally the same complaints people have about the governor -- Medicaid expansion, possible road taxes, etc.  There is certainly room for debate on these issues, but there is no room for debate on Michigan 2014 vs. Michigan 2010.  What a difference real leadership makes, even if you don't agree with it 100 percent of the time.  Like it or not, Calley is part of the team that has moved our great state forward, and he has earned his place as the Governor's choice for running mate.

For those who favor the other candidate, how would that work, exactly?  Do you honestly think he would be part of the administration?  Do you think he'd travel with the governor, talk strategy with the governor, or have any substantive role whatsoever?

Article V, Section 25 of the Michigan Constitution describes the role of the lieutenant governor:

The lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided. He may perform duties requested of him by the governor, but no power vested in the governor shall be delegated. 

If Calley's opponent is selected on Saturday, and if the Governor is reelected in November (which would be made harder by the opponent's selection), the new LG won't need to find a residence in Lansing -- he'll be attending funerals around the state for the next four years.  His selection will be absolutely pointless, other than to provide certain folks with a source of misguided pride that they "took down the lieutenant governor."

Cataloging the first four years of the Snyder administration, honest Republicans would admit they agreed with 90 or 95 percent of the things that have been accomplished.  There are always battles to be fought and won (like the bridge), but the areas of disagreement should not be the tail wagging the dog.

I always laugh when people use the term "establishment Republican."  There's a term with no meaning whatsoever, used only by those who want to be in the establishment.  What happens when the outsider gets elected -- does he automatically become an establishment Republican to be despised and vilified?  Look at our Attorney General -- he is an unbelievable public servant, conservative and dedicated.  Is he an establishment Republican?

For the last four years, Brian Calley deserves our support.  For a lifetime of dedicated service, Ron Weiser deserves our support.  Both of these men are undeniable conservatives and should be nominated at Saturday's convention.