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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    O'Brien - A Supreme Gamble

    By Kevin Rex Heine, Section News
    Posted on Mon Aug 27, 2012 at 10:33:49 AM EST
    Tags: John Roberts, Harriet Miers, George W. Bush, David Souter, John Sununu, George H. W. Bush, Phyllis Schafly, Bob Young, Betty Weaver, Mary Beth Kelly, Wayne County Circuit Court, Colleen O'Brien, Oakland County Circuit Court, Diane Hathaway, trust but verify . . . always (all tags)

    Conservative Republicans, at least those over 25 years old, may remember one of President George W. Bush's biggest political blunders.  Her name was Harriet Miers.

    If you are not yet old enough to run for Congress, well, draw near.  I'll tell you about the tumultuous summer of 2005.  And I'll tell you why that matters to Rule-of-Law Michigan Republicans in 2012.

    Harriet Miers was the White House Counsel during the "W" years.  In July of 2005, Supreme Court Justice Sandra Day O'Connor announced her intention to retire.  Bush appointed Miers to lead a search committee to find a replacement for O'Connor.  Bush chose a well-regarded lawyer named John Roberts to replace her.  But before Roberts could be confirmed, Chief Justice William Rehnquist died of thyroid cancer.  Bush withdrew Robert's name and re-nominated him for Chief Justice.  He then surprised everyone and nominated Harriet Miers to Justice O'Connor's seat.

    Here in the Heartland, we heard the usual Pavlovian response from Washington liberals and Democrats: they spoke about something they call the Radical Republican Agenda.  Meirs' will destroy the middle class, murder seniors, and pour sugar in the gas tank of Medicare.  She'll hold poor people's heads under water while raising their health insurance rates.

    Of course, we eventually tuned them out.  We can only take so much angry, mindless pabulum.

    But whispering in the winds blowing up from Washington D.C., we began to hear different voices.  Just as angry, but forceful and well argued.  It came not from liberals, but from conservatives.  "Who is Harriett Miers?" they said, and "Where is her record?  How do we know she is conservative?"

    White House strategists winked.  "Trust us," they said.  "If we nominate a judge with an open, verifiable record, Democrats will pore through her opinions and cherry pick a few cases, or even a few sentences from a few cases, to make her look bad.  Remember what happened to Judge Bork?  The last thing we want is someone with an open, verifiable record."

    Yet the conservatives were not buying it.  They spoke worryingly of another such Presidential choice for the Supreme Court: Justice David Souter.  The October 15, 2005, Washington Whispers column in U. S. News and World Report said this (emphasis in the original):

    In the fight over Supreme Court nominee Harriet Miers, a lot of really nasty stuff has been said about Justice David Souter as critics try to draw a sharply negative comparison with President Bush's pick.  Namely: Souter was a Republican unknown whose political friends conned former President George H. W. Bush into naming him to the court, where he blossomed into an embarrassing moderate liberal.  Conservative Phyllis Schafly sneers that Miers is a "female Souter."

    Washington Whispers can be a little flippant.  But this lack of a verifiable record was very serious business, as the Washington Post confirmed:

    "With so much at stake, to many of us it seems ill-advised to nominate somebody that we're then told we should have faith in, when there isn't any evidence of intellectual rigor being applied to these contentious issues," said conservative activist Gary Bauer.  "There are probably seven to eight names that have been looked to, have written wonderful decisions that are strong intellectually, compelling in their presentation.  They are the kind of people you want to look to if you want to try to move the legal culture in America."

    By the end of October, 2005, Ms. Miers wrote Bush and asked him to withdraw her name.  It wasn't the Democrats who killed her nomination; it was the conservatives who, having been burned before (because David Souter was also supposedly a rock-solid conservative . . . without a track record), refused to "trust" the White House.

    In 2010, Bob Young was up for reelection to the Michigan Supreme Court.  Justice Betty Weaver chose to not seek the Republican nomination.  (Yeah - that's another story altogether.)  So that created a vacancy.  Bob Young handpicked a Juvenile Court judge from the Wayne County Circuit Court, Mary Beth Kelly, as his running mate.  She had a nice Irish name, and she was from Southeast Michigan.  She had no record.  But Michigan Conservatives were not as sharp as Gary Bauer.  Justice Young, so it seems, is a conservative.  So we trusted him.  Mary Beth is his choice.  We'll go with her.

    What was Mary Beth Kelly's record?  Who knows?  Circuit judges rarely issue written opinions.  And when they do, they get tucked away in some court file.  They're "public" in the sense that the public can access them.  But the public can only find them if they have a case number or the name of a party to the case, and are willing to cover the FOIA expenses.  There is simply no open stream of opinions flowing from a circuit court judge like there is from a Court of Appeals Judge or a Supreme Court Justice.  For all practical purposes, a Circuit judge has no open, verifiable record.

    Although in 2010, Court of Appeals Judge Jane Markey was also seeking the nomination, a judge with "written wonderful decisions that are strong intellectually, compelling in their presentation," we went with Mary Beth Kelly.  We trusted.  We did not verify.

    Where did this get us?  Mary Beth Kelly was the swing vote and author of the controlling opinion in the Stand Up For Democracy case that has thrown the state into chaos.  She ruled that petitions seeking to place on the ballot a referendum overturning the Emergency Manager Law, petitions containing signatures bought and paid for by public sector unions, complied with Michigan law.  That immediately suspended the law: so the City of Flint, the Detroit Public Schools, the Highland Park Public Schools, the Muskegon Heights Public Schools, to name just a few, are thrown back into the corruption and thievery of the much desired (by unions and Democrats) "status quo."  In so doing, she broke with her rule-of-law colleagues and sided with the empathy Democrats on the bench.

    Is this surprising?  Is this not surprising?  I don't know.  How does anyone know?  SHE HAD NO TRACK RECORD!  That's the whole point.  There was no record to read, nothing to vet.

    For what my opinion may be worth, no Circuit Court judge should ever be elevated directly to the Supreme Court without first serving at least one full term on the Court of Appeals, a court that issues hundreds of opinions a month, all of which are immediately open, and easily available to the public.  It should also be noted that five of the current Michigan Supreme Court justices have previously served on the Michigan Court of Appeals bench (the only other exception being Diane Hathaway), so their records were open books as soon as they were originally nominated.

    But now, not even a month after his 2010 running mate laid a rotten egg on the bench, Chief Justice Robert Young is asking conservative republicans to trust him again.

    Justice Marilyn Kelly, Young's predecessor as SCOMI Chief Justice, cannot stand for reelection because she is over the age of 70.  This creates another vacancy on that bench.  Rather than reaching out to the runner-up at the 2010 convention, a COA judge with nearly 18 years of experience on that bench and a record that is readily available for public review (including the little fact that she's the third least overturned judge currently on that bench), Young is again attempting to elevate a Single-A ballplayer directly to the big show.

    Judge Colleen O'Brien is a sitting judge on Oakland County's Sixth Circuit, a circuit that I am told is the busiest one in the state.  Nevertheless, she is still a trial court judge, so figuring out what her actual judicial record is (and, by extension, what her jurisprudence philosophy is) will involve a rather time-consuming and prohibitively expensive fishing expedition through court transcripts going all the way back to November of 1998.  I'm pretty sure there's no way that gets done before the state convention two weeks from now.  Yet Chief Young is telling us to take his word for it that Judge O'Brien is a rule-of-law conservative.

    David Souter, Harriet Miers, and Mary Beth Kelly are Exhibits A, B, and C for why no one, absolutely no one, rates a Supreme Court nomination without an "in the open" jurisprudence record to support that nomination.  Why on earth would we want to take a chance that Colleen O'Brien won't become Exhibit D?

    < Godspeed, Neil | Moderates Cannot Be Trusted >

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    I know that this is short notice, but... (none / 0) (#1)
    by KG One on Mon Aug 27, 2012 at 03:11:30 PM EST
    ...if anyone is interested is hearing O'Brien speak, she will be at the Troy Area Tea Party tomorrow evening at 7:00pm to speak before the group.

    Info below:

    TATP - August 2012 Meeting

    If I remember correctly, she was at last month's meeting, but didn't speak before the group.

    This would be a great time to ask any questions about her stance on the bench (and maybe some examples of her opinions).

    Unfair and Inaccurate Article (none / 0) (#2)
    by PTurner on Mon Aug 27, 2012 at 10:10:06 PM EST
    The entire premise of this article is inaccurate and incredibly unfair to Justice Mary Beth Kelly.  

    I don't dispute that Harriet Miers would have been a huge gamble.  I don't dispute that conservatives have been burned again and again when it comes to judges, with Souter being a prime example.  I also don't dispute that conservatives must ask tough questions and should seek people with a proven commitment to the rule of law.  But that is where the agreement between this article and myself ends.

    First, Justice MB Kelly has proven to be a terrific Justice on the MSC, anything but a "rotten egg."  She DID have a solid record in the trial courts, serving as Chief Judge of the Wayne County Circuit in desperate need of reform, which she brought.  And upon election to the MSC, she has overwhelmingly with her fellow Rule of Law judges on most cases, advocating for results that are based in textualism.  Anyone who has watched the Court in the last year and a half can tell you this--they have taken some very tough votes on tough cases, but done so in accordance to what the law requires.  But even if you assume that MB Kelly got it wrong with regard to the EFM law (not necessarily true--see below), one bad decision does not a bad judge make!  Rule of Law judges do not agree all the time:  yes, they are applying the same reasoning and tools, but they may come to different outcomes, and doing so in some cases does not make them unprincipled or bad judges.  I just about fell out of my seat when I read the comparison of MB Kelly to David Souter--as an avid court-watcher, I say this with all sincerity: almost nothing could be further from the truth.

    Second, with regard to the EFM case in particular, you perhaps should read the Court's opinion in that case.  Six justices total (three R-backed, three D-backed) rejected the governor's position to keep the EFM repeal off the ballot.  While this case has been portrayed in the media as a 4-3 case with MB Kelly joining the Dems, it was actually 6-1 in this regard.  Two other R-backed justices, while rejecting the governor's legal position, nevertheless thought that there was a factual issue remaining and would have remanded for more evidence to be had.  Moreover, all four of the R-backed Justices (the "Rule of Law" justices on the Court) voted to reject substantial compliance as a sufficient legal theory, which otherwise allows non-complying ballot proposals to qualify for a ballot anyway.  Thus, with regard to the legal issues in the EFM case, MB Kelly got things precisely correct; she only disagreed with her conservative colleagues on the factual question.

    Third (and what I will say here may be a bit controversial to some people): we as conservatives are supposed to want judges who will do the right thing, no matter how much that person disagrees with the politics of it!  That is what sets us apart from the left: we believe in the Rule of Law, which means that even if it leads to bad results for us, we want our judges to judge things as the text of the Constitution or statute or contract or whatever requires.  If you are voting for a judge because you want him/her to come to politically expedient conclusions for conservatives in cases that come before the Court, then you are not voting based on the Rule of Law.  Being a judicial activist is being a judicial activist, regardless of whether your conclusions are "conservative" or "liberal."  And as conservatives, we are supposed to be above that.  

    I am not on here stumping for Colleen O'Brien, or for/against Jane Markey, or defending Robert Young (although HE has done more for conservative legal thinking in Michigan than probably anyone in the past several decades--to suggest as the author does that he is only presumably a judicial conservative or that he is supporting faux-conservative judges to the courts is absolutely absurd).  And although this could be labeled a defense of Mary Beth Kelly, that is only partially the case.  

    I just think that people need to be informed.  As a trial judge, Colleen O'Brien doesn't have an opinion record, but she does have a record as a judge and she should be questioned about it.  As a Court of Appeals judge, Jane Markey does have a record of her opinions (some of which are very questionable) and she should be questioned about it.  One doesn't "need" to be a COA judge to be a good judge on the MSC, but the bottom line is that whoever is chosen must prove herself to be committed to the rule of law.  People: make an informed decision, and do not let the false analogy in this article distract from that.  And for heaven's sake, please do not let the fact that a judge has, once, voted for a case where you may disagree with the outcome sour you on a person's entire judicial philosophy or record.

    Well... (none / 0) (#7)
    by Corinthian Scales on Fri Aug 31, 2012 at 10:02:38 AM EST
    If Ron Weiser is involved: O'Brien sucks.  Hell, even Miller Canfield buying both sides is on board with O'Brein.

    Slimy lawyers.  Clint is right about that.

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