EDITORIAL: Endorsement: Bagenstos and Clement for state Supreme Court

Oct. 25--For 20 years, Michigan Supreme Court elections have been proxy wars between insurance companies (who want the high court to make it harder for injured plaintiffs to collect damages) and trial attorneys (who want justices to make it easier to sue for fraudulent conduct, dangerous products and negligence).

Republican justices have been bankrolled primarily by insurors and other deep-pocket defendants, Democratic justices by trial lawyers and labor unions.

Many voters have concluded they don't have a dog in this fight. They pay little attention to who's running for the state's highest court, or ignore those supposedly non-partisan contests altogether. In the typical statewide election, as many as a third of those who turn out don't cast a vote for any Michigan Supreme Court candidate.

Yet liability cases account for only a small percentage of the high court's workload. And over the next few years, the high court's seven justices will contend with controversies sure to impact millions of Michigan residents who've never been party to a lawsuit:

--Does Michigan's state constitution bar legislators from banning abortion even if Roe v. Wade is overturned?

--Does Michigan's governor have the authority to shut down the aging oil pipeline under the Mackinac straits?

--Can Republican legislators somehow retain control of the state's redistricting process even if voters adopt a constitutional amendment transferring that authority to a new citizens commission?

--Who, if anyone, can be held accountable for cleaning up municipal water supplies tainted by lead or the more-widespread industrial contaminants known as PFAs?

We believe that justices entrusted with the last word on such questions must possess the smarts to go toe-to-toe with the best appellate lawyers in the country, a demonstrated reverence for the rule of law, and the integrity and independence to rule without fear or favor to their financial backers or political party.

In our judgement, three of the four candidates for two state Supreme Court seats at stake in the Nov. 6 election meet that high standard: Democratic nominees Sam Bagenstos and Megan Cavanagh and incumbent Republican Justice Elizabeth Clement all promise to serve Michigan residents with dedication and distinction.

Because voters are constrained to choose just two of these well-qualified candidates, our endorsements must be limited to Democrat SAM BAGENSTOS and Republican ELIZABETH CLEMENT.

The case for Bagenstos

Bagenstos, 48, has held no previous judicial office, but he is the most qualified candidate to seek a seat on the court in recent memory. Currently a tenured professor at the University of Michigan Law School, he is a Harvard Law School graduate who clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and served as the deputy assistant U.S. Attorney General for civil rights in the Obama Justice Department. A seasoned appellate lawyer with an impressive record in civil rights enforcement, he prevailed in three of the four cases he argued before the U.S. Supreme Court.

No candidate demonstrates a more sophisticated grasp of the way Republican justices who have dominated the state judiciary since John Engler was governor have flexed their majority control to barricade the courthouse door. Bagenstos cites recent rulings that barred a lawsuit on behalf of under-served public school students and curtailed protections against gender-based discrimination as instances in which GOP justices exceeded their judicial authority to knee-cap plaintiffs seeking redress.

Bagenstos' experience in civil rights enforcement suggests that he will be less reflexively dismissive of litigants seeking redress from bad actors in government and private industry.

The case for Clement

Clement, 40, was serving as Gov. Snyder's chief legal counsel and deputy chief of staff when he appointed her last November to the vacancy created by the resignation of Justice Joan Larsen, another Snyder appointee who now sits on the U.S. Circuit Court of Appeals for the Sixth Circuit.

Clement boasts neither the breadth of Bagenstos' appellate experience nor his record of civil rights advocacy. But in her brief tenure, her work ethic and tenacious independence have inspired bipartisan admiration and enhanced confidence in the court's integrity.

Clement and Justice David Viviano, another GOP incumbent initially appointed by Snyder, incurred the wrath of rank-and-file Republicans (including former Gov. Engler, whose appointments were the foundation of the court's enduring Republican majority) when they voted with the court's two Democratic justices to clear the way for a 2018 ballot initiative opposed by the GOP. If approved by voters, Proposal 2 would transfer the authority to draw Michigan's political boundaries from Republican lawmakers to a new, bipartisan citizens' commission.

Clement and Viviano also joined a 4-3 ruling that upheld local school districts' authority to ban guns on school property, a decision opposed by gun rights advocates who represent a core GOP constituency.

Both rulings exhibited the sort of judicial restraint conservatives usually applaud. Each rested on the majority's conviction that justices lacked the authority to contravene policy initiatives approved by voters (in the Proposal 2 case) or elected school board members (in the gun case.)

What Clement and Viviano have demonstrated is the difference between principled conservatism and blind partisan obedience. Viviano isn't up for re-election this year. But Clement has paid a high price for her independence: Although party delegates grudgingly endorsed her nomination, her name has been omitted from many Republican party mailings, and some party officials have encouraged Republican voters to cast only a single vote for Justice Kurtis Wilder in the two-seat supreme court race, a practice known as bullet voting.

Exalting impartiality

By rejecting Wilder in favor of Clement and Bagenstos, Republicans voters can telegraph the message that principle and impartiality matter more than party affiliation.

Megan Cavanagh, 47, is a highly respected appellate lawyer who has represented clients in more than 150 cases before state and federal appeals courts. In addition to chairing the Appellate Section of the Michigan Bar, she serves on the state Attorney Grievance Commission that supervises the ethical conduct of Michigan attorneys.

Cavanagh is fully qualified to sit on the state's highest court, and we hope she will continue to pursue that objective if she fails to win election this year.

Wilder, widely regarded as the court's least energetic justice, is part of a Republican judicial troika (including Chief Justice Stephen Markman and Justice Brian Zahra) that can be generally be relied on to protect the party's rooting interest in matters brought before the court.

Originally appointed to the state Court of Appeals by Engler, Wilder was tapped for the state Supreme Court by Snyder a few months before Clement. He has not demonstrated that Michigan voters should place much confidence in his impartiality and independence.

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