It’s official, Justice Markman says it’s us against them and wants to turn a 4-3 conservative majority on the Michigan Supreme Court into an almost invincible 5-2 majority by sweeping the November elections for Michigan Supreme Court.
Speaking very carefully such that he only publicly endorsed or supported candidates for judicial office (Canon 7 of the Michigan Code of Judicial Conduct states that a judge should not “make speeches on behalf of a political party or nonjudicial candidate or publicly endorse a candidate for nonjudicial office”), Justice Markman spoke to a packed room of Republican donors and supporters on his belief that judges should be “committed to rule of law.” Whether all of his opinions actually are consistent with his stated premise is up to debate (read: most Democrats can’t decide whether to laugh or roll their eyes whenever they hear that slogan)
He and Justice Brian Zahra are candidates this November that have been endorsed by the Republican Party. A third candidate will be selected by the GOP in August. Justice Markman, while working for Ronald Reagan wrote an op-ed column in the Chicago Tribune entitled In Defense of Reconsidering Miranda, in which he arguably advocated for Judges to make decisions that would affect police policy (even though he generally believes judges should not make decisions that affect policy).
In contrast with Markman and Zahra and the soon-to-be-named GOP hopeful, there are true advocates for justice. They are Shelia Johnson, Connie Marie Kelley, and Bridget Mary McCormack. I wrote about Professor McCormack in my last post and I’ll continue to zealously support her candidacy for as long as she wants to run for judicial office.
I guess the reality is that the view of the Judge as espoused by Justice Markman is probably one that has more stock right now, particularly as a result of very effective rhetorical arguments made by Republicans for the last twenty years or so. But the idea that judges are merely referees is not as “decided” as Justice Markman would have us believe.
Supreme Court Justice Oliver Wendell Holmes, Jr. told us that “the life of the law has not been logic; it has been experience.” There was once a strong belief advocated by Holmes, and professed by many others that “men make their own laws … these laws do not flow from some mysterious omnipresence in the sky, and … judges are not independent mouthpieces of the infinite.” When Markman is telling us what the law is, he’s really telling us what the law should be. Remember, he tells us the law should be solely the plain language of the legislature (even though he doesn’t always support that in his own opinions). The law, however, isn’t about shoulds or oughts, it simply is. Law is affected by society, by culture, by experience, by science. When Bridge McCormack fights with the Innocence Project, she is telling us that the law is in fact affected by science (DNA) and by society (bias towards criminal defendants) and that to make a more just society, we should exert our influence to the law if we cannot get our legislators (probably because they are constantly drowning by money from lobbyists) to do so for us.