Justice Zahra: Wilder's 2018 defeat 'devastating' to rule of law

Beth LeBlanc
The Detroit News

Mackinac Island — Michigan Supreme Court Justice Brian Zahra bemoaned the defeat of a former colleague at the Mackinac Republican Leadership Conference Saturday, seeming to imply that Kurtis Wilder's November defeat compromised the makeup of the state’s highest court.

“It is an understatement to say that the defeat of Justice Kurtis Wilder was devastating to the rule of law in Michigan,” said Zahra, a nine-year jurist on the state’s highest court.

Wilder was a Michigan Court of Appeals judge for 18 years before being appointed by Republican former Gov. Rick Snyder to the Supreme Court in 2017. He lost his seat in November to Megan Cavanagh, a Democratic nominee.

Brian Zahra

Elizabeth Clement, another Snyder appointee, won election to the court alongside Cavanagh in November despite the party's angst over a July 2018 vote that allowed a controversial redistricting proposal to appear on the November ballot. 

The only African American on the Supreme Court, Wilder had been endorsed by Wayne County Prosecutor Kym Worth, who said he was a fair judge who protected crime victims’ rights.

Wilder’s defeat left Republican-nominated justices with 4-3 majority on the Supreme Court. In addition to Markman’s seat, Chief Justice Bridget McCormack would be up for re-election in 2020.

McCormack declined to comment on Zahra's statement Saturday.

The comments were "unjustified" and "remarkably disrespectful" to Zahra's colleagues on the court, said Richard Primus, a Constitutional law professor at the University of Michigan College of Law. 

Because Zahra and Wilder often agreed on cases, it makes sense that Zahra would see Wilder's defeat as a loss, but to equate that with a deficiency in the rule of law is false, Primus said. 

"The court is as well staffed with qualified and respect-worthy judges as its been during my career," Primus said. "I don’t think the rule of law has suffered a bit of damage."

The comments from the Michigan Supreme Court justice were surprising and disappointing for Grand Rapids attorney Hal Ostrow, who was a supporter of Wilder's during a 2016 run for the Court of Appeals and Clement in 2018.

But after the Republican Party's treatment of Clement last year, Ostrow said he became somewhat disillusioned by what the party expected of its justices. He said he did not support Wilder in the Supreme Court race. 

After Clement's ruling on the redistricting proposal — a proposal Republicans continue to oppose — she was booed at the Republican nominating convention. Door hangers distributed by the party encouraged residents to vote on Nov. 6, 2018, and listed every other statewide Republican candidate, including Wilder, but omitted Clement’s name and photo. 

"I was very disappointed with the partisanship around her nomination at the Republican convention," said Ostrow.

"I think the court has demonstrated a commitment to following the rule of law instead of picking the outcome and choosing a rationale to support that outcome," he added.

Zahra’s comments Saturday ahead of the conference’s closing dinner where House Minority Leader Kevin McCarthy was scheduled to speak came as he advocated for a court that declined to legislate from the bench and instead faithfully followed the rule of law. Zahra said he had worked with Wilder for many years on the Court of Appeals, prior to Wilder’s appointment to the Supreme Court.

“He’s intelligent, hard-working, thoughtful, his opinions are driven by fidelity to the law,” Zahra said.

Zahra said it was an honor to serve with Wilder as well as former Chief Justice Bob Young and former Chief Justice Stephen Markman, who will leave the court next year.

“History will show that these three jurists were critical to preserving and protecting our Constitution, our personal liberties and the rule of law in Michigan for the past quarter century,” he said.

Republican former Attorney General Bill Schuette, rumored to be mulling a run for the Supreme Court, was among those in the audience Saturday.

The 2018 Republican candidate for governor has largely laid low since his November defeat.

But earlier in the weekend conference on Mackinac Island, when asked whether he was considering a run for the Supreme Court, Schuette didn't deny his interest and said he's worried about the direction of the court.

"My big concern is how the court has shifted away from the strong rule of law court it was under (former Gov. John) Engler," Schuette said. "I'd like to see it return to that type of court. It's important for Michigan." 

Should he win, Schuette would take the Supreme Court seat at the age of 65, making him ineligible to serve more than one eight-year term. People over the age of 70 cannot run for the Michigan Supreme Court, according to Michigan law.