Michigan Supreme Court won't have black justice for first time in 33 years

Michigan’s Supreme Court on Jan. 1, 2019:  L-R by row from top, justices  Brian Zahra,  Richard Bernstein, Megan Cavanagh, Elizabeth Clement, David Viviano, Bridget Mary McCormack and chief justice Stephen Markman.

For the first time in 33 years, the Michigan Supreme Court will not have an African-American justice or a person of color come Jan. 1 after Justice Kurtis Wilder's election loss.

Since Democratic Party-nominated Megan Cavanagh narrowly defeated Republican-nominated Wilder, the state's highest court will become an all-white body. African-Americans comprise 14 percent of Michigan's population and make up 83 percent of the state's largest city.

The lack of diversity on the Michigan Supreme Court has the local African-American legal community worried. The issue is of "great concern" to the Rev. Wendell Anthony, head of the Detroit branch of the NAACP.

"We're always concerned about diversity," Anthony said. "Diversity presents an opportunity for there to be a greater sensitivity toward different people, different backgrounds, different values, different situations. When you have a diverse court, diverse company, or diverse anything ... it just makes a broader view and gives one a broader understanding of the issues impacting and effecting that particular ... situation."

State of Michigan Supreme Court Justice Kurtis Wilder listens to oral arguments  in court in Lansing on November 19.  He did not collect enough votes to continue for another term.

The court has had at least one black justice since Democratic Gov. James Blanchard appointed Dennis Archer in November 1985. Archer has been followed by Conrad Mallett, who resigned in 1998; Robert Young Jr., a Republican-nominated justice who retired in April 2017; and Wilder.

"We can count the number of African-Americans that have been on the Michigan Supreme Court on ... on one hand," Anthony said. "It is supposed to be the highest (court), but you cannot be all of that unless you really reflect the highest values and traditions of all people."

But he added that white jurists can make fair rulings in many cases. 

Democratic Gov.-elect Gretchen Whitmer may well appoint an African-American to the high court if a vacancy occurs, according to Archer and Bill Ballenger, a former Republican lawmaker who has written about state government politics for more than three decades. 

Chief Justice Stephen Markman, 69, is nearing the state's required retirement age of 70 for judges that is enforced when judges or justices reach the end of their term. The term for Markman, a GOP-nominated justice, expires at the end of 2020.

There is speculation in Lansing that Markman might decide to retire before year's end to give Republican Gov. Rick Snyder a chance to appoint a replacement, Ballenger said.

Minorities on the court

Five African-Americans have served on the seven-member court in its 214-year history.

The first was Otis Smith, who was appointed by Democratic Michigan Gov. John Swainson in 1961 and served on the bench until 1966. After Smith was defeated for re-election, he was hired in 1967 as general counsel for General Motors Corp.

Archer followed nearly two decades later but returned to private practice in 1990 as he considered his eventual, successful run for Detroit mayor. 

"It makes a difference" when citizens see personnel and judges in the courthouse who look like them, said Archer, who is chairman emeritus for the Dickinson Wright law firm in Detroit.

Michigan won't be alone among populous states in not having an African-American justice.

Florida won't have a black justice on its Supreme Court next year after a list of 11 replacements recommended by a nominating commission to the state's incoming governor didn't have any African-American nominees. The court's lone black justice , Peggy Quince, is leaving after reaching mandatory retirement age.

Michigan has two black judges, Karen M. Fort Hood and Cynthia Diane Stephens, on the Michigan Court of Appeals, which is one rung below the state Supreme Court.

Former Detroit Mayor Dennis Archer, seen recently at his law office in downtown Detroit, was a Michigan Supreme Court justice from 1986 to 1990.

Racial and ethnic diversity should be a key priority for the Michigan Supreme Court, Archer said. Otherwise, there is a sense of distrust about the high court.

"People become suspicious or they lose respect for the law," he said about the lack of African-American judges. "Then you have a problem or a disconnect."

Archer said he told Blanchard when he left the bench that he worried it would be another 20 years before another African-American would be appointed or elected to the bench.

"I did let Gov. Blanchard know that I would appreciate it if we would not have that kind of issue occur again," Archer told The News.

Blanchard appointed Mallett to replace Archer. Mallett, now chief administrative officer for the Detroit Medical Center, became the first black chief justice of the Supreme Court in 1997 before resigning at the end of 1998.

Former Chief Justice Conrad Mallett Jr. of Detroit.

As Mallett's replacement, Republican Gov. John Engler chose Young, who helped cement a conservative judicial philosophy on the court and was selected for an unprecedented three consecutive two-year terms as chief justice by his colleagues.

Democratic candidates

No African-American women have been appointed or elected to the Michigan Supreme Court. Three black women have run for the high court in the past decade: Southfield District Judge Sheila Johnson, Oakland County Circuit Court Judge Denise Langford-Morris and Wayne County Circuit Court Judge Deborah Thomas.

But the Democratic Party this year didn't nominate any minorities for the high court as it chose two white candidates, appellate attorney Cavanagh and University of Michigan law professor Sam Bagenstos. The party was criticized for its all-white slate of candidates for governor, attorney general and secretary of state before Whitmer selected Garlin Gilchrist II of Detroit for lieutenant governor.

Cavanagh had high name recognition and great odds for winning, Ballenger said.

"I think the Democrats wanted to win and you've got someone like Megan Cavanagh ...and in the Year of the Woman, you go for it," he said. 

Archer agreed, saying Cavanagh is a "very bright, outstanding lawyer" who comes from a family of "great lawyers" since her father, Michael, was a state Supreme Court justice for 32 years.

The last time Democrats decided not to run a minority candidate, in 2008, nominee Diane Hathaway defeated then-Justice Cliff Taylor. Hathaway resigned in 2013 and subsequently was sentenced to a year in prison for bank fraud involving a Grosse Pointe Park home.

Diversity matters

The high court's diversity matters for people like Metro Detroit attorney Arnold Reed, who served as a clerk on the Michigan Supreme Court during Mallett's tenure. 

"The courts should be representative of the people they serve," just as juries are expected to reflect a defendant's peers, said Reed, an African-American.

"It gives people who come before the court a sense of fairness," he said. "We also need to do better with a representative of Hispanics, Arab-Americans, Chaldeans. ... We need to move more in that direction (of diversity)."

But voters should elect and the governor should appoint people of color as judges because they provide "a diversity of value," Anthony said.

But he makes exceptions for some judicial conservatives such as U.S. Supreme Court Justice Clarence Thomas, who has not sided with minority groups on rulings such as affirmative action in university admissions and other issues affecting women or minorities.

"The black skin does not make you a kin to the real issues impacting minorities and women in this nation," Anthony said. "We need people who are professional but who are also sensitive and who are learned and who look at the totality of the impacts of issues on our community.

"I'm not so certain that we have experienced that recently on the Michigan Supreme Court, so hopefully this will change."


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