Anyone speculating who Gov. Gretchen Whitmer will appoint to replace outgoing Michigan Supreme Court Chief Justice Bridget McCormack should look to the appellate bench and look for someone of color, experts say.
When McCormack leaves the bench later this year, only one of the seven remaining justices served on the Court of Appeals and only one other served as a judge at the trial court level. None are of color.
Judges Kristina Robinson Garrett, Noah P. Hood and Sima Patel are possibilities as they are each 2022 Whitmer appointees.
"I think if you look at the Governor's track record in making appointments and what she's said in the past with regards to appointments, she's always endeavored, and I think her record has been effective, to assure that governmental bodies and courts reflect the … diversity of the state they serve," said Dykema attorney Steven Liedel, a former legal counsel for Gov. Jennifer Granholm.
Speculation is Whitmer will appoint a Black woman as the court currently lacks an African American justice and has since former Justice Kurtis WILDER was defeated in 2018 by Justice Megan Cavanagh. No Black woman has ever served on the Michigan Supreme Court.
Rep. Kyra Bolden (D-Southfield) could be a contender if she's unsuccessful in her run for the Supreme Court.
Liedel said there are two criteria any governor should consider when making a judicial appointment – someone who applies the law without fear of favor and electability.
Bolden definitely fits the latter as she's currently serving her second term in the House.
"You want a judge or justice, anytime you're appointing someone, who effectively engages with and knows how to interact with folks that are responsible for electing judges and justices," he said. "There's some personality types who may be really great lawyers but just have no interest or lack the skill set to be effective candidates for office."
There has been a long tradition with prior administrations, including former Govs. Rick SNYDER and James BLANCHARD, to appoint legal counsel - or a spouse of an employee as former Gov. John ENGLER did – from their administration.
The last such appointment was Snyder's former legal counsel, Justice Elizabeth Clement.
"I don't know if there's anyone in (Whitmer's) office interested in being on the court," Liedel said.
Other considerations could include an appointee's background, such as when Granholm appointed then-Court of Appeals Judge Alton "Tom" DAVIS to the bench.
Davis, who is from Northern Michigan, replaced then-Justice Betty WEAVER, the only justice representing Northern Michigan on the bench at the time.
The Governor could draw from a Circuit Court where judges have large dockets, giving them broad scope of experience. Those could include Wayne, Oakland or Kent counties.
Whitmer also could choose a former colleague from her legislator days, including Kalamazoo County Circuit Court Judge Alexander Lipsey or Chief Judge William McConico of the 36th District Court bench in Wayne County. Both judges served in the Michigan House from 2000 to 2006.
McConico was initially appointed to the bench in 2010 by Granholm.
Whomever Whitmer appoints, that person will have to run in 2024 to retain the seat.
It is rare for a governor's appointment not to keep the seat, but it has happened.
Davis and Wilder, who was an appointee of Snyder, both lost their elections following their appointments.
Former Justice Clifford Taylor, who was a 1997 Engler appointee, became the first chief justice to be defeated by a challenger in 2008.
Liedel said it is likely Whitmer could consider the range of experience on the court and then try to fill any holes. For example, McCormack has academic experience and Clement has experience in state government in both the legislative and executive branches.
Cavanagh and Justices Richard Bernstein and Elizabeth Welch have private practice experience and Justices David Viviano and Brian Zahra each had judicial experience prior to joining the state's high court.
