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Monday, October 18, 2004

If ever there were a moment in Michigan judicial history when philosophy
mattered, it is now. And voters have, in the four candidates for Michigan
Supreme Court, a clear choice in conflicting philosophies.

Two incumbent justices are seeking re-election to the court: Stephen Markman
and Marilyn Kelly. The two other candidates are Appeals Court Judge Brian
Zahra and Wayne County Circuit Judge Deborah Thomas. Though judicial races
in Michigan are nonpartisan, the two parties do nominate candidates for the
Supreme Court. Markman and Zahra are Republican nominees; Kelly and Thomas
are Democratic nominees.

What are the philosophies that separate the candidates? Judges all see their
role in relation to the law and to the Constitution. Generally, those with a
strict-interpretative philosophy distinguish their role from that of
legislators, who write law.

Judges, according to strict constructionists, are to apply the law, not make
it. Other judges see their role in more expansive terms. While they would
not say their role is to "write" law, they view the law as a "living
document" to be interpreted and applied even when there are policy
implications.

Given that philosophy, law might even "evolve" into something other than
legislators intended.

Among the candidates, Justice Markman and Judge Zahra are both brilliant,
able advocates of applying the law, regardless of how it comes down.

Justice Kelly, though a distinguished judge with broad experience (including
12 years on the state Board of Education), is one of the court minority
justices who take a more expansive view of the law. And Judge Thomas, whose
election would be an asset in terms of racial diversity, has faulted the
Supreme Court for overturning a pair of $21 million jury verdicts, both out
of Wayne County.

In one of the cases, the Supreme Court ruled 6-1 that a jury had no basis
for deciding that a doctor's error caused a baby to develop cerebral palsy,
since the connection simply wasn't made on a scientifically sound basis.

Justice Kelly agreed in part with the majority but voted against the ruling
and in her dissent argued that the "element of causation" was established,
and the jury was entitled to decide the case.

Judge Thomas, speaking of the same case, argued that jurors should be able
to "send a message" with such verdicts.

Send a message? Let juries award multimillion-dollar awards on grounds less
than scientifically sound? Where do judges live these days? Don't they see
the connection between absurdly high jury awards and the soaring cost of
health insurance, medical care and malpractice insurance?

This is just one example, though. The underlying issue is how readily judges
and courts abandon the underpinnings of law and embrace the cause of social
justice.

Justice Markman, a 1999 Engler appointee, was elected to the court in 2000
after several years on the appellate bench. A former U.S. attorney, he
teaches constitutional law at Hillsdale College and lives in Mason.

Judge Zahra, who lives in Northville, was appointed to the appellate court
in 1998 by Gov. John Engler and elected in 2000. A University of Detroit Law
School grad, he had distinguished himself several years on the Wayne County
Circuit Court.

In a ruling that drew widespread attention, he joined two appellate
colleagues in a unanimous ruling in 2000 dismissing lawsuits filed by
Detroit and Wayne County against 30 gun manufacturers. The ruling upheld a
state law banning such lawsuits.

These are the kinds of judges we want in the courts. Their own ideas of
public policy and social justice are secondary to their regard for the law
and respect for the legislative role.

Therefore, we recommend that voters re-elect Justice Steven Markman and
elect Appeals Judge Brian Zahra to the Michigan Supreme Court.

--The Jackson Citizen Patriot

© 2004 Jackson Citizen Patriot. Used with permission