When you’re planning to vote, it's easy to focus on the top of the ticket. But what about all those other important contests farther down the ballot?
This year, Michigan votes on two races for the Michigan Supreme Court. The state’s highest court has decided some pretty big issues in the past five years. Need voters sift through thousands of pages of written opinions to be informed? And what about candidates aspiring to this court, who may or may not have judicial records?
Riding to the rescue: Nicholas Bagley, Professor of Law at the University of Michigan, and a former chief legal counsel to Governor Gretchen Whitmer, for two periods in 2020 and 2022.
Here are some of the questions we tackled. [This interview transcript has been edited for length and clarity].
April Baer: Our justices are elected nonpartisan, so when I look at my ballot, I don't see a “D” or an “R” next to each name, but the candidates are nominated by each major political party. How did we end up with this mismatch in terms of partisan identification?
Nick Bagley: Yeah, it's super confusing. And the answer goes to a deep ambivalence that we feel about judges. On the one hand, we want them to be nonpartisan, unbiased people who are lawyers, who apply the law without fear or favor. On the other hand, we know that judging is an activity – especially at the Supreme Court level – that entails a lot of political judgment. When you're rendering a decision about the scope of the Michigan State constitutions, protections for abortion rights, for example. That's not a decision that you can make without reference to some values that you bring to the bench. And that ambivalence about whether we want nonpartisan umpires or whether we want to know something about the political inclinations of the people that we're electing, has really scrambled our elections, and put us into this – I think – unfortunate spot.
AB: Do you think it's enough for voters to look at the political party that nominated a candidate and feel like that person is going to is going to be the best person for the job?
NB: Look, people are multi-dimensional and they're not just a reflection of their political party, but political party tells you a lot about judicial philosophy. And to the extent that you are affiliated with a particular political party, it's pretty good rough cut to say that's what should guide your vote. And I think it'd be easier if there was partisan affiliation on the ballot. But in the absence of that, it takes a little bit of work to figure it out. The nominees have their own websites. They've got Facebook pages. You can read their list of endorsements, which I think is a really key way of understanding sort of where they fit in.
AB: When it comes to candidates who are not already sitting members of the Michigan Supreme Court, what kinds of case briefs or opinions or other other points of record might we look to to figure out where they where they stand and what their judicial philosophy is like?
NB: Well, the nominees come from really different backgrounds, and some are going to have much longer public records and some are going to have shorter. And so you have to exercise judgment. So for one of the two seats, it's a contest between Kim Thomas, who's a Michigan law professor who runs a clinical program at the law school — a colleague of mine. She's running against Andrew Fink, a 39 year old legislator from Hillsdale. He's a Michigan law grad, a former Marine, but he was also an opponent of Governor Whitmer's during the Covid 19 pandemic. He was endorsed by Right to Life. He's got questions about the 2020 election. So when you have the two candidates side by side, you have to make a judgment about sort of their respective qualifications based on where they come from. You can't read their opinions because neither has been a judge before.
But for the other two candidates, Kyra Bolden and Patrick William O'Grady, both are judges. Kyra, Justice Bolden is serving as a justice on the Michigan Supreme Court, and you can read her opinions and you can get a sense of how she approaches issues. Judge Patrick William O'Grady has been a judge since 2008 and a former Michigan state police officer, a former member of the Army Reserve. He's been issuing judgments for a long period of time. And you can read some of his opinions and get a sense of where he comes down on the issues. Realistically, for most people, it's going to be hard to dig in at that level of detail.
AB: Can you think of any rookie mistakes to avoid when it comes to vetting our candidates?
NB: The biggest mistake that people make in these elections that they don't turn their ballots over. So the Michigan Supreme Court races are listed on the back of ballots. Please turn over your ballot and actually cast your vote. You know, in terms of the other mistakes that people make, I think sometimes you get to the voters voting booth and you're tired and you're not sure and you just vote for the incumbent or you just vote for the person whose name is most appealing to you. If you have a little time to reflect, to learn a little bit more about these candidates, you're going to cast a much more informed vote.
