Finley: GOP may lose grip on Michigan Supreme Court

Michigan Republicans took solace after the brutal midterm election in that they still controlled the state House and Senate, and had a majority of the justices on the state Supreme Court.

That leaves the party with enough power in Lansing to counter the loss of the offices of governor, secretary of state and attorney general.

But one of those key GOP pillars — the Supreme Court — could easily fall to Democrats.

It's a long-standing tradition that justices who come to the court by gubernatorial appointment — as most do — should not leave their seat for a governor of the other party to fill.

In other words, if a Republican appointed you, and you plan to resign or retire, get out while a Republican is still in office.

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That unspoken rule would apply now to Chief Justice Stephen Markman, who was named to the court in 1999 by former Gov. John Engler. Markman is 69. Justices can't seek re-election after age 70.

So the chief justice won't be able to run in 2020, when his term expires. 

Republicans over the past 25 years have almost never won an election for an open seat. The GOP is right to worry that without an incumbent on the ballot in 2020, the court will flip to a Democratic majority.

Markman has not made the decision to step down and let Republican Gov. Rick Snyder fill the opening before he leaves office on Jan. 1.  

"I really don't want to comment on my personal plans right now," he says. "I'm aware of all the options and of the circumstances." 

Markman is under surprisingly little pressure to take one for the team. That's  because the GOP establishment is unhappy with some of the governor's appointments.

Snyder has named five justices: Brian Zahra, David Viviano, Joan Larsen, Kurt Wilder and Elizabeth Clement.

Larsen was placed on the Sixth Circuit Court of Appeals by President Trump and Wilder lost his seat in the recent election — a rare occurrence for an incumbent justice and one that narrowed the GOP's majority to 4-3. 

While Zahra and Wilder met with enthusiastic GOP approval, Viviano, Larsen and Clement proved too unreliable in their partisan loyalties for many Republicans. 

The thinking is that if Snyder names another justice who refuses to toe the party line, the seat may as well go to a Democrat.

The gentleman's agreement on returning court seats to the party hasn't always held. In 2010, Republican-affiliated Justice Elizabeth Weaver, after months of feuding with her GOP colleagues, abruptly resigned, allowing Democratic Gov. Jennifer Granholm to replace her. 

That move gave Democrats, briefly, their only majority on the court since 1999.

Another twist: Zahra, who Snyder appointed in 2011, is under consideration for one of the two vacant federal district court seats in Michigan.

Even if he were to get the appointment from President Trump today, there's likely not enough time to complete the confirmation process before Snyder leaves office on Jan. 1.

A Zahra departure after Jan. 1 would mean that very early in her tenure, Gov.-Elect Gretchen Whitmer would be able to flip the court to a Democratic majority. 

nfinley@detroitnews.com

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