Michigan’s Judicial Hotbed
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The national press is abuzz with speculation about whom President Bush might nominate to fill vacancies on the Supreme Court. And since it is the national press doing the buzzing, virtually all of the speculation centers on federal judges or nationally known legal scholars.
No doubt there are some fine prospects among them. But let’s hope the White House is casting a broader net. There are many equally good, if not better, choices available from the ranks of state judges. Just consider the pool available in Michigan, where the state supreme court is dominated by a Republican majority that has in recent years established itself as a sort of conservative judicial dream team.
Of course, after 40 years of Democratic majorities on the Michigan court, the ideas expressed in the dream team’s opinions are frequently castigated by liberals as – surprise! – “extreme.” All but one of the four-person core of the seven-person court has handily won re-election after the initial appointments. However, strongly suggesting that it is the critics who are out of the mainstream these days.
The election of judges – federal judges are appointed and have lifetime tenure – is a debatable phenomenon. But it does have the advantage of ensuring that judges learn the art of political humility. It also means they have learned how to survive the inevitable darts and smears used by their political opponents. As a result, there may be fewer surprises during confirmation hearings in the Senate.
Mr. Bush already has shown that he values the state judiciary. Alberto Gonzales, his White House counsel and his nominee as Attorney General, was a member of the Texas Supreme Court before coming to Washington. But if he’s looking for judges who have experience with the kind of issues he cares about, Michigan’s Supreme Court justices have even more to recommend them.
The president has made tort reform a legislative priority, for example. In an opinion written by Chief Justice Clifford Taylor, the Michigan Supreme Court upheld damage caps on liability awards that are similar to what the White House is proposing. Limits on damages don’t violate the right to a trial by jury, as plaintiffs attorneys have argued across the country. As long as such limits have a rational link to public policy, it’s within the rights of a legislature to set them.
Republicans also talk a good game about property rights. But perhaps the most tangible step towards restoring property rights to a central place in the law was the Michigan Supreme Court’s decision last fall, authored by Justice Robert Young, overturning the egregious “Poletown” decision allowing Wayne County to condemn private land for use by General Motors. (Also proving that the term “conservative” doesn’t mean a judge who is in the pocket of big business.)
And, in a widely-watched case involving a suit against an iron company by the National Wildlife Federation, Justice Stephen Markman showed that he walks the talk of conservatives who argue that judges should limit themselves to interpreting law rather than making new law. He ruled that Michigan environmental law violated the state constitution by allowing “any person” to file a lawsuit even when there was no evidence of harm to actual individuals. Absent a “particularized injury, there would be little that would stand in the way of the judicial branch becoming intertwined in every public debate,” wrote Justice Markman.
Liberals, who otherwise profess a belief in a “living, breathing” Constitution whose principles can be bent to meet the latest whim, now accuse conservative judges of radicalism for overturning decades of liberal precedents. But Michigan Justice Maura Corrigan ably articulated the case for not blindly following precedent. “[T]he act of correcting past rulings that usurp power properly belonging to the legislative branch does not threaten legitimacy. Rather, it restores legitimacy.”
Okay, promoting a state judge, even a state supreme court judge, to the U.S. Supreme Court is a long shot. Democrats in the Senate have declared that they will oppose nominations not just on the basis of character and competence, which is fair enough, but because they share the president’s judicial philosophy. If Mr. Bush is looking for philosophically compatible veterans of the judicial wars who have already withstood such attacks, he could do a lot worse than look to Michigan.
Mr. Bray is a Detroit News columnist.