A true advocate for those with the greatest need
When I arrived at the campaign office of State Supreme Court candidate Bridget Mary McCormack just south of Dexter, I found her Skyping into a house party meeting Michigan’s Upper Peninsula. She had just finished making her pitch to a room full of nearly two dozen potential supporters, who could be seen on the screen of her laptop, and was taking questions. When you’re running a statewide campaign for a position most people know little about and often ignore on the ballot, it’s this type of unconventional approach that could make the difference between who wins and loses the race for one of the three open spots on the Court. It’s also completely in line with the type of campaign that McCormack is running.
State Supreme Court Candidate Bridget Mary McCormack Skypes with supporters in Michigan’s Upper Peninsula
McCormack is a legal professor and the Dean for Clinical Affairs at the University of Michigan Law School. Through the various clinics she runs, Michigan citizens who are unable to afford legal representation receive the services they need. From wrongfully convicted prisoners to victims of domestic violence, Professor McCormack is changing people’s lives in tangible ways through her clinical work. You can read about her impressive background and qualifications HERE.
McCormack is one of three candidates that have been endorsed by the Michigan Democratic Party. The other two are Wayne County Circuit Judge Connie Kelley, Oakland County District Judge Shelia Johnson. Of the three, McCormack is running the most visible campaign, relying on public appearances along with aggressive use of social media and online resources like Skype to make sure Michiganders know who she is, why she’s running for the court and how important it is to vote in the nonpartisan part of the ballot.
I spent an hour talking to Prof. McCormack last week about her background and qualifications as well as her campaign for the seat. I started off by asking how she squares her nomination by the Democratic Party with the fact that the position is intentionally nonpartisan and her judicial philosophy seems to reject partisan labels.
“You’re endorsed by the Democrats and you’re considered to be a Democrat even though theoretically you’re not. I’ve seen your website and you seem to have very firm beliefs that the race shouldn’t be a partisan thing and should be about following the law. How do you feel about the how partisan the Supreme Court has become?” I asked.
“I think it serves the public better when it actually operates in a nonpolitical way,” McCormack said. “I think when the state Supreme Courts become political, one side wins most of the time. The great example of this is a decision made by the Iowa Supreme Court in 2009. They held in a 7-0, very “rule of law”, straightforward decision, straightforward constitutional analysis, that gay marriage was constitutional, that the state couldn’t interfere. It was really almost a boring, methodical constitutional decision. Then, the very next year, out of state funders, when three of the justices were up for reelection, took them out. They just took them out. Because “more money” wins.
“Like with other branches of government, if politics play a big role because of campaign finance laws, then one side can control. Unfortunately, that’s what we have here. The partisan nomination process is a part of the problem. The bigger part of the problem, though, is opaque campaign finance laws. Consider this: Michigan’s race in 2010 was the most expensive Supreme Court race in history the country ever. That’s amazing, right? And the next one is probably going to be worse because there were only two seats in play in 2010 and there are three now. So, there will so much money spent and, for most of it, you won’t know who is spending it. All of these ads about me because of my clients are going to be paid for by groups like “Citizens for Fairness” or “Citizens for a Perfect World” — these are the groups that are going to be running the ads that make me look like a terrorist!
“So, if there was a fair fight in terms of money, maybe the courts could be like the other branches of government and we could fight it out. But there’s no fair fight in terms of money in this country. I think that the Founding Fathers intended that the court is supposed to be different than the other branches of government. It was supposed to be where being right is more important than being powerful and popular. It’s supposed to be the place where fairness trumps strength and, therefore, it was supposed to play this independent, nonpartisan role. The combination of our partisan nomination process — which requires a lot out of a candidate that I think is inappropriate in terms of being on the court, in my view — coupled with the funding system makes for a bit of a mess in our courts.”
“What would change that?” I asked. “How would we get away from that?”
“I think that you could do two things. First, create a nonpartisan nomination process. We do it for our circuit court races. You have to get your signatures, you have to do the work and have feet on the ground. For a statewide race, I’d imagine you’d have to have a certain number of signatures from each Congressional district or county or something. But, you could do it and get on the ballot and campaign.
“I think the bigger change would be to figure out how to have a different funding system for Supreme Court elections. I feel like you could sell this, you know? You could never sell it for the other branches, you can’t sell public financing of elections.”
“Because they’re actually political?” I asked.
“They actually ARE political. Right. But I feel like it’s hard for anyone to disagree why it’s inappropriate in this context and maybe you could sell, at the very least, more robust disclosure. If you could sell more robust disclosure, it would be a huge step in the right direction.”
I asked about how non-political decisions by both the Circuit Court of Appeals and the state Supreme Court have been in the past six months. “The Court of Appeals has been surprisingly even-handed over the past few months,” I said. “More than I thought they would be. The Supreme Court, too, for that matter.”
“I completely agree. The Supreme Court’s 7-0 decisions on the ballot proposals — I was kind of jumping for joy. I like any non-4:3 decision out of that court because I feel like it boosts public confidence in the system. No matter how it comes out, I’m just happy when it’s not 4:3 along partisan lines. In addition to actually wanting independence and integrity, we want public confidence. We want, when the Court decides something important, for people to say, ‘Well, everyone had a fair shake, they were heard, and this is what the Court decided.'”
We spoke a bit about the recent attacks on the rights women have gained over the past several decades in terms of reproductive health and access to safe and legal abortions.
“This election,” she said, “That’s something people should really take note about. I mean, I would have told you in law school that we didn’t have anything to worry about in our courts in terms of protecting women’s reproductive freedom. I would have said, ‘You’ve got to be kidding me. That’s done, we’ve finished that.’ And now… I mean Planned Parenthood has endorsed me and they’ve never done that in judicial elections.
When you walk into the McCormack campaign office, it looks like a campaign office. There are organizational charts posted, yard signs in large stacks and charts on the walls with goals, targets and results.
“I’m really impressed by this group out here,” I told McCormack, pointing to her staff. “I don’t know if I’m on more mailing lists than the average person is but I’m getting a lot of information from you. Compared with your two “co-candidates”, you guys are a real operation and are running a serious campaign. I’m very impressed with that and haven’t ever seen anything like it for a judicial candidate. Where is that coming from? Is that your brainchild or is it the people you’ve hired?”
“Well, I don’t want to take too much credit because they are the ones doing the hard work. But I think it started with me. I decided I wanted to run a campaign that’s a real campaign. I thought it was unlikely that I’d raise the kind of money that they other side would raise, although I’ve raised a lot more than the other Democrats so I’m working hard at that, as well. I think it’s all a bit crazy that we need to worry about raising money to run for the court but it is what it is and it’s not going to change by November, so I’m trying to nail each piece of this process.
“I decided that this race is really about educating voters, especially educating the voters who are going to care. The drop-off of people that vote in the partisan races and the skip the nonpartisan part of the ballot is really significant. I studied the numbers and data and it’s anywhere between 27% and 40% drop-off — people that don’t vote on the nonpartisan races. It’s a huge thing we’re dealing with: how to educate the voters.”
McCormack is right — this IS a big problem. The endorsement of candidates by the Republican and Democratic state parties creates confusion for many people. Straight-ticket voters often think they have voted for the court candidates because they have been endorsed but this is not the case and it’s imperative that people turn their ballot over and vote in the nonpartisan section, as well.
“So we decided we’re going to run a real campaign,” she continued. “I think for court, most people haven’t. They rely on the parties to do it for them. I’m not sure that makes sense.”
I commented about how the battles over the Supreme Court races in 2010 had degenerated the race into typical political mudslinging and how that did not help with the opinions people hold about the courts.
“Watching what happened in 2010,” I said, “And watching how the Michigan Democratic Party (MDP) handled it in the way they did, it is not playing well into bringing up the level of discourse about the Supreme Court. They made it this trashy, scandalous, dirty politics fight and that seems counterproductive.”
McCormack said that she’s trying hard to avoid that kind of race.
“You know, I practice in this court. In fact, Cooley Law School has an award each year for the best brief in the Supreme Court [the Thomas M. Cooley Law School Review 2012 Distinguished Brief Award] and I won it this summer. So the Chief Justice had to give me this award! As a result, I actually have good relationships with both Republicans and Democrats on the Court. It’s no secret about who I am or what I’ve done my whole career. People know my values so when I appear in that court, it’s on behalf of someone who has had a harder time getting a fair shake. But, I have good relations with both Democrats and Republicans.
“Marilyn Kelly has endorsed me as the person she’d like replace her on the bench. She has long been a lion of a Democrat on the court. Mary Beth Kelly, who is a Republican, is a close friend of mine. In fact, it was at her swearing in that I decided I should run. I want to keep it that way.
“So we decided that we were going to run our campaign like a real campaign. That means doing a lot of constituency outreach. We’re doing a lot of earned media. I think I’ve talked to every small newspaper in every small town across the state. They don’t endorse but they are thrilled that you stopped in, so they’ll do a feature on you, which gives us more exposure.
“We’re also very focused on our field operation which will give us a base of people that will hopefully make a difference in those drop-off numbers.
“Finally, we’ve got a big social media event coming out on Thursday so folks will want to be on the lookout for that. It’s a very big deal and should get a lot of attention!”
This event, which IS a very big deal, was mentioned in an email sent out by McCormack’s new media director Zack Stanton over the weekend:
Something great is going to happen next week, and you are going to be one of the first people to know about it.
I can’t tell you about it just yet, but trust me: it will make news. And it will give us a ton of momentum.
In the meantime, if we do what we need to – calling voters, talking to neighbors, and knocking on doors – then we can drastically increase the impact next week’s story will have.
It’s pretty simple: the more folks we get on board, the better position we’ll be in to capitalize on this news.
This is exciting. And as someone who has worked on a lot of campaigns, I can tell you firsthand that something like this doesn’t happen every day.
(Watch for release here at Eclectablog on Thursday.)
In her role as a University of Michigan law professor and Dean for Clinical Affairs, McCormack has established a number of clinics to help Michigan citizens who have limited access or no access at all to the judicial system. I asked at McCormack about this.
“I was looking at your website and there are all of these clinics:
- The General Litigation Clinic
- The Domestic Violence Clinic
- The Pediatric Health Advocacy Clinic
- The Mediation Clinic
- The Low Income Taxpayer Clinic
- The International Transactions Clinic
- The Human Trafficking Clinic
- The Juvenile Justice Clinic
- The Innocence Clinic
- The Entrepreneurship Clinic
“So, tell me, what are ‘clinics’? Because I don’t think most people know what they are.”
“Law schools have become a lot more like medical schools in the last 30 years, we do a lot more practical education than we did historically. We do it in a bunch of different forms and the form that I have specialized in, and I’m the Dean for all of these programs, are live client clinics. What that means is that our law students represent people who wouldn’t otherwise have access to lawyers. We do it in a variety of different contexts and so the clinics are usually driven by subject matter, although not always.
“The law students work under the supervision of faculty for a LOT of credits. It will basically be most of their case work for a semester or a year. They’ll represent the clients in that clinic in every aspect of their cases. So, they’ll be in the trial court, they’ll be in the appellate court. I have law students trying jury trials and arguing in the 6th Circuit Court of Appeals. The one court they can’t argue in is the Michigan Supreme Court — Court rules don’t permit that. But they do argue in the Court of Appeals and they argue in the Federal Court of Appeals and they do it all. They do all of the talking with the witnesses and negotiating with opposing counsel, all of it. They do it under the close supervision of faculty and, frankly, they do a great job because they’ll have, say, three cases where a poor, busy lawyer on the other side will have a gazillion cases. We’ll show up with briefs and research –”
“So in some cases, they’re actually getting MORE attention than they would in a normal situation?”
“Absolutely. The clients that we represent get very good representation. And students just learn things that they can’t learn in a traditional class. In my view, it’s the best place to learn many of the skills of the profession but, more importantly, the values and the ethics of the profession. I just don’t think those things come off the page in the traditional classroom the same way.
“It’s also the reason that I’m running for the Court. I love brand new law students, first year law students. They’re great. I love teaching them why the court is different from the other branches of government. They kind of get it right away. You can quickly train them to make both sides of an argument really passionately, so well that you don’t actually know which one they believe.
“But then we have these practices in these clinical programs. We don’t compete with the private bar so we’re only representing people that can’t afford representation otherwise. So we have the Domestic Violence clinic, for example, and the Pediatric Health Advocacy Clinic where we represent people who are low-income patients at some clinics locally and also at Mott Hospital because they have a statewide patient base and we provide legal services to them. For example, we’ll have a pediatrician call us and say, ‘I have this patient that has asthma, I’ve tried every medical intervention that I can think of but he won’t get better because he lives in public housing apartment that’s full of mold and there’s nothing I can do about that’. Well, we know how to solve that problem. We’re lawyers, we know how to solve that problem. So, we partner with pediatricians to provide legal service to them.
“Right now, I teach in the Michigan Innocence Clinic. We represent people who have been wrongfully convicted of crimes and we’ve exonerated six people in our first three years.”
“Wow, that’s impressive,” I said,.
“Well there’s low-hanging fruit in Michigan. I wish I could say that it’s just us. Unfortunately the combination of partisan courts and bad lawyers at the trial level leads to wrongful convictions. It just does.
“But, it’s great experience for the students. I mean, a student that takes an Innocence Clinic case and wins? It’s life changing. It’s really life changing. The things they learn in the context of doing that they will never forget that. I actually love it. I’ve been back in the class now for two weeks and I feel alive again! My students are really smart and they’re asking me tough questions and I love that. It’s a great, great job.
“If I win this race, I will give up tenure, I’ll take a pay cut. I’ll give up a lot of autonomy and a lot of smart colleagues. I work at a place where I can say, “Gosh, I don’t like this problem and I’m going to try to do something about it’, and all of my colleagues and the rest of the administration will say, ‘Yeah, let’s try to do something about that’, and they’ll help me and support me and give me resources. I mean, who has that?! I’m one of the luckiest people in the world!”
“So, you decided or were you recruited to run?” I asked.
“I decided. I was at Mary Beth Kelly’s swearing in. My husband [who is also a lawyer and law professor at the University of Michigan Law School] was actually the first one. He said, ‘You should really run for the court. You’d be great. You have the respect of the Republicans and the Democrats and you could do a good job so I really think you should think about it.’
“I said, ‘No, you’ve got to be kidding. They’ll just say bad things about me because of my clients!’
“He said, ‘I don’t think so. I think you should think about it.’ A couple of weeks later, he had other people call me, like other lawyers and within like six weeks, I was thinking, ‘Well, maybe I should…” That was almost two years ago at this point.”
I asked about McCormack’s decision to run for a seat on the Supreme Court having never served as a judge herself.
“Is there precedent for somebody who is not a judge to be on the Supreme Court?”
“There is. I’m glad you asked that. There are a lot, in fact. On the U.S. Supreme Court, something like 40% of the appointments were not from the bench. The most recent appointee, Elena Kagan, came from the Harvard Law School faculty. Historically, the law schools were a great feeder to the state Supreme Court. Justice Cooley, who is probably the most storied justice in Michigan history, came from University of Michigan faculty. That’s where he came from.
“There are a lot of paths that lead to the Supreme Court, and I don’t mean to say that this is a BETTER path than any other path, but what we’re doing in a law school, in the traditional classroom and in our scholarship is really picking apart appellate decision-making and we’re putting it into historical context. We’re synthesizing it. We’re fighting about what footnote 7 means about where Justice So And So is heading in the next case. We basically are doing the work — we’re engaged in the work that a Supreme Court is engaged in. What we trade in in law school is appellate decisions.
“I myself practice in all of the courts, including the Supreme Court, so I think that my own experience makes me certainly qualified and, in some cases, uniquely qualified. Again, I think that every candidate has unique things to bring, but I think that when you have seven people around a table, it would help to have a little bit of diversity in background. We don’t need have every single person to come from the same trial bench. Let’s have a little diversity in background and experience.”
“How much of that happens? When they are deciding cases, is it seven people sitting around a table making decisions?”
“That’s how it’s supposed to happen. You’re supposed to go to conference having read the briefs and whatever memos have been prepared for you in advance and you’re supposed to actually talk about it with an open mind. I don’t know how much that happens in a court that’s become too politicized. I’m afraid that people go in knowing how they are voting and they don’t really engage. But, I don’t like that. I want to go sit on that side one day and I want to challenge people to convince me that they’re right. And then I want them to convince me once in awhile! It’s happened to me at the law school. I’ve come in thinking that I think “X” about something we’re having a workshop on, and I’ve been convinced that I don’t think “X” anymore. That’s how it should work.”
Last year, I wrote about a woman named Rebecca Williams Jackson. She was an indigent person that was taken in to the Mecosta County Medical Center and who was harmed by the care that she received. She sued them but, because she was suing a medical doctor, it was required that she have an “Affidavit of Merit”. However, because she was suing eleven doctors, she needed eleven Affidavits of Merit which would have cost her between $16,500 and $55,000 which she obviously couldn’t afford. So the Supreme Court wouldn’t hear her case because she didn’t have these things. So it was a situation where, if you don’t have the money, you don’t get justice. I asked Prof. McCormack about these types of cases and what can be done about it.
“There are some really good studies about how certain plaintiffs with a certain level of injury are priced out of this market nowadays, the courts just can’t serve them. And, in fact, in the interest of full disclosure, my husband has a book coming out on this topic that University of Princeton Press is doing, although he’s writing it for everyday people to read it, not just academics. It’s pretty empirically-based, about how, if you die or are severely disfigured, some lawyer is going to take your case and front all of that. But, if you’re seriously injured but not dead, there’s a certain category of injuries that are basically priced out of the market. It’s really complicated because there’s just not enough money involved to make it worth it for the lawyers to do it. That’s the way that market works.”
“So, what do you do about something like that?”
“Well, there are some ideas. First of all, you don’t want any frivolous lawsuits but you want to always make sure the system gives access to people with real claims. People with real claims, you don’t want them to be denied access. That’s the biggest sin of our system. The Supreme Court has an administrative function. In its administrative function, and in its rulemaking function, frankly, they have the ability to address problems like that.”
“They waved her court fees because she was indigent but they still required eleven Affidavits of Merit which she couldn’t afford.”
“If she had been severely injured, some lawyer would have taken that case, that’s just how it works. So, here’s one proposal: South Carolina, California, I think the federal system, and a couple of other states that I haven’t kept up with have this process called summary jury trials. Summary jury trials are a less expensive process, everything is expedited. There’s not tons of discovery where everybody can fight about everything. In fact, the judges that hear the case are actually lawyers who put on robes and the jurors who are brought in don’t know that they aren’t real judges, but they’ve come up with this fast tracked, cheaper system for that category of cases that are priced out of the market. Everybody likes it on both sides.
“The Supreme Court of South Carolina first did it as an experiment. Everybody likes it. The plaintiff’s lawyers like it. The defense bar like it. Neither side has to spend too much figuring out where should this case settle. They can do it inexpensively and quickly and efficiently do it by waiving the traditional process — it’s like opting into Judge Judy’s court or something like that. But, it’s a state-sponsored process and everybody has come to respect it and it turns out to be a pretty great experiement.
“Okay, so now I have two questions: first, is this just the “no-frills, kinda sorta justice” or is it real? And, if it’s real, why the hell aren’t we doing it everywhere?! Why do we have this system that’s so cumbersome and bulky and expensive?”
“Well, I think that, when you’re talking about really high-dollar damages, then more process is important. As far as the question about whether we’re giving up rights we might have in a more robust process, that’s probably a good question and the answer is probably ‘yes’. But if you can’t afford to find your way into the more robust process, it’s a good alternative.”
“I would say that, maybe another way to frame it is that, for people that are marginally injured but are rich enough, they can sort of game the system and “purchase” their justice but that this seems like a more equitable distribution of justice.”
“Yes, it is. It’s a really fascinating process and worth more states looking at. I feel optimistic that you could convince people working on both sides of the cases that it’s in their interest.”
“This is not something that, as a Supreme Court justice, that you would have any control over, is that true?”
“No, you would! It was the Chief Justice of the South Carolina Supreme Court that pushed this through in South Carolina. So, something like this, I could champion it as a member of the Court. I would have to get other people on board, I’d need to convince the relevant sections bar that this was worth looking at. But we could certainly run a trial program.”
“Is that something that you would do?”
“It’s definitely something that I’m interested in. I’m really interested in increasing access to the court system.”
“Are there any other innovative things like that that are on your mind?”
“Well, your question about whether or not you’re giving up important procedural or substantive rights by opting into a “mini process” raises an interesting issue. Another example is “specialty courts”. About 20 years ago we started to see specialty courts start popping up — domestic violence courts, drug courts — courts where one judge would handle that sort of case over and over again. The same concerns were raised when specialty courts came about. Would people be giving up constitutionally-protected rights that they are entitled to in exchange for some sort of different type of treatment in a drug court, for example? All of those concerns, now 20 years later, have completely fallen aside. Those courts have proven to be a complete success.”
“To what do you attribute that? Is it because there’s still judicial oversight, or something else?”
“That’s a great question. Goodwill is certainly part of it. I also think that any jurisdiction that has decided to experiment with a specialty court is probably doing it out of a concern about figuring out how to solve a particular problem. But they work. The recidivism rates are considerably lower. We now have good data. There are a couple of specialty courts, for example, in Kalamazoo, where someone was actually able to crunch these numbers, and recidivism rates are far lower. So, we’re saving people money, saving people heartache, keeping people from going back to crime. Interviews with lawyers who now have been working in these courts for 20 years is showing that there isn’t some trade-off in terms of constitutional rights. There’s really just a benefit and the benefit turns out to be for everybody. We’re saving money and people are able to get justice and move on.
“Specialty courts has been an interest of Justice Marilyn Kelly’s and I would like to carry that forward for her. I think it would benefit a lot of people at the low levels of the criminal justice system who end up in it for whatever reason.”
“So, what does that mean in terms of going forward? Does it mean just expanding some of the stuff that’s out there to other jurisdictions or different types of courts…?”
“I think both. We should be both expanding it and growing it, growing the list.”
We finished our conversation where we began: partisanship in supposedly non-partisan races and the polarization of the Michigan political scene and government. Professor McCormack had this to say:
“This partisanship that we’re seeing in the courts and elsewhere is, in some ways, a piece of a larger story that we could tell about our whole country right now. It’s a weird time; we live in a weird time. But, I do think that there’s a sales job to be done for reforms in the Court first.
“Win or lose, I’m taking it on. If I win, I’ll have a platform from which to do it and, if I lose, I can do whatever I want. I’ve got support at the law school and the resources to make a positive difference for people in our judicial system.
“I think I’m the right person for the job.”
I came away from this interview excited about the prospect of a true legal professional with a deep and proven passion for making sure that every Michigan citizen has equal and affordable access to our legal system. In addition to that, Professor McCormack embodies the characteristics that are important for a Supreme Court justice. Although she’s endorsed by the Democratic Party, she’s open-minded, scholarly and measures things with a yard stick of fairness, without regard to politics. Her desire to reduce the partisanship on the Court and her determination to make that happen make this very qualified candidate one that voters on both sides of the aisle should respect and support.
And don’t forget to stop back on Thursday for an important event related to her campaign. You won’t want to miss it.
[Photo credits: Anne C. Savage, used with permission]