The Gongwer Blog

Supreme Stakes As MIGOP Snubs Justice Clement

By Zachary Gorchow
Executive Editor and Publisher
Posted: September 25, 2018 12:51 PM

This year's race for two seats on the Michigan Supreme Court has suddenly become one of the most consequential ever for the court.

The Michigan Republican Party has informally ostracized one of its nominees, Justice Elizabeth Clement, and whether Ms. Clement wins election to a full term on the court will have significant ramifications.

Ms. Clement's rulings in two cases have infuriated a big chunk of Republican activists. The former Senate Republican staffer and top legal counsel to Governor Rick Snyder, who appointed her to the court a year ago to fill a vacancy, joined majority opinions that school districts can regulate firearms on school campuses and that the redistricting ballot proposal met legal muster to go on the ballot.

Ms. Clement was not the only Republican-nominated justice to rule that way in those cases, but she's the only one on the ballot this year who did so and has been pilloried by some Republicans as traitorous as a result. The person giving the speech to nominate her at the August Republican state convention was roundly booed throughout his remarks. And when the voice vote was held on whether to nominate her, the nays sounded a bit louder than the ayes, but the convention officer declared the ayes outnumbered the nays and gaveled her through.

That would not prove the end of the story. Last week, a Republican activist excited to be passing out literature supporting Republican candidates tweeted an image of a door hanger the party was distributing in the Monroe area. The Michigan Republican Party retweeted it for their followers to see.

As I scanned the door hanger, there were the names and faces of Bill Schuette, John James, Lisa Posthumus Lyons, Tom Leonard, Mary Treder Lang, Supreme Court Justice Kurtis Wilder, U.S. Rep. Tim Walberg, state Sen. Dale Zorn and state Rep. Joe Bellino.

Ms. Clement's name and face were glaringly absent.

This was a stunning snub. State GOP spokesperson Sarah Anderson said the party's grassroots activists overwhelmingly communicated to the party they would not distribute literature for Ms. Clement.

The stakes are now extremely high in this Supreme Court election.

If Ms. Clement wins, it will signal that the political parties who nominate the justice candidates (who officially run on the nonpartisan ballot) are powerless to, depending on one's point of view, kneecap/hold accountable an incumbent whose rulings anger party activists. Incumbent justices can nominate themselves and enjoy a designation on the ballot that says "Justice of the Supreme Court" that historically all but guarantees re-election/retention.

With an eight-year term won despite a finger in the eye from the Michigan Republican Party, Ms. Clement, who already appears unencumbered by partisan considerations, could feel validated and continue to rule as she has so far.

If Ms. Clement loses, and one of the Democratic nominees – attorneys Sam Bagenstos or Megan Cavanagh – replaces her, the court moves from a 5-2 Republican majority to a 4-3 Republican one. But more significantly, an unmistakable signal will have been sent to the other Republican justices, that ruling in a way that infuriates party activists puts them in peril. Mr. Wilder and another Republican-nominated justice still eligible to run for re-election, Justice Brian Zahra, have generally ruled conservatively during their time as judges, but Justice David Viviano has broken ranks like Ms. Clement on other key rulings.

Mr. Viviano wrote the majority opinion in the redistricting case and tangled intensely with Chief Justice Stephen Markman, a Republican-nominated justice, in that ruling. Might he see a Clement defeat as a signal to tone it down? He made it clear Monday he thought the Michigan Republican Party's move was wrong. He doesn't have to seek re-election until 2026.

Throughout the Clement controversy, it seemed unlikely that Republicans would sacrifice her in the name of ideological purity if it meant a Democratic replacement who overall would be unlikely to rule in their favor as often as Ms. Clement presumably would.

While there are some Republicans aghast at the MIGOP's snub of Ms. Clement, like Lt. Governor Brian Calley and state Sen. Tonya Schuitmaker of Lawton, among others, it appears the bulk of the activists would rather take their chances.

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