Trump Short-Lister Young Is Scalia Fan, Traditionalist

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By Patrick Gregory

Oct. 19 — Michigan Supreme Court Chief Justice Robert P. Young was surprised to see his name on Donald Trump’s list of potential U.S. Supreme Court nominees, he told Bloomberg BNA.

But Young—the highest black elected official serving Michigan—is a “judicial traditionalist” and “a great fan of” the late Justice Antonin Scalia, which might explain why he’s on the Republican presidential nominee’s list.

The chief justice has a Republican political background and says he supports “basic middle class values.” Young doesn’t believe his racial background should influence how he interprets the law, he told Bloomberg BNA by telephone Oct. 18.

He has focused on improving “customer service” in Michigan’s courts and on eliminating unnecessary judgeships, which is expected to save the state up to $200 million.

Asked if he would accept a nomination to the high court, Young said that it would “be hard to imagine anybody in that circumstance not being delighted.”

Scalia Fan

Trump said he’s looking for someone “very much in the mold of” Scalia, who passed away unexpectedly Feb. 13. He has said he will choose his Supreme Court nominees from the list he has released.

“I highly admired Scalia,” Young said.

Scalia “literally changed the focal point of judging,” Young said by telephone Oct. 11.

“Before, we had a pretty free-floating dominant judicial culture as represented by law school teaching,” that “everything was a jump-ball and judges could do pretty much what they wanted because there was nothing that was limiting” their judgments.

Young appreciates Scalia’s “forceful and vocal” advocacy for originalism and textualism, “the notion that words matter and that the context in which they came into being matters.”

That approach is a contrast “to what I call the Rorschachians,” Young said, referring to psychological tests that ask subjects to interpret inkblots.

He said “Rorschachian” judges “believe that there is no meaning, and all you get to do is project your views” onto “formless words.”

Young admires how Scalia, the late Judge Robert Bork of the U.S. Court of Appeals for the D.C. Circuit and others “caused a lot of people to generally regard words as being a very important starting and ending point for what judges do,” he said.

Judicial Traditionalist

Young describes himself “as a judicial traditionalist, which is hearkening back to pretty much the mainstream of how jurists thought of themselves almost from the beginning.”

Until modern times, most “judges thought of themselves as trying to interpret the words of the Constitution, and statutes, and contracts, according to the words” in context, Young said.

That “was before we all became very fancy social engineers and philosopher kings.”

Traditionalism means respecting the Constitution’s political process, Young said.

One “oughtn't be an aggressive intervenor in the political process to thwart it unless there are explicit constitutional limitations that prevent the majority from acting as it will,” he said.

Detroit, Discrimination

Young is a Detroit native, and his father was the first black doctor to build his own clinic in the city.

Young said his father couldn’t finance the project because of discrimination, The Detroit News reported in 2015.

“A Jewish friend bought the building and then my father had to buy it from him,” Young said last year.

Like his father, Young has risen to prominence.

But though he is Michigan’s highest black elected official, “I don’t really think about that very much,” he said.

“I’m conscious of being black but that doesn’t really come into my mind” in daily life, he said.

Diversity Discussion

Young said he views the issue of diversity as it relates to judging differently than does President Barack Obama.

The chief justice doesn’t think “diversity is a troubling thing” philosophically, he said.

But “the idea that my background informs or should inform what I think the law is is a fairly troubling one,” he said.

“Our president thinks otherwise and says this is how he chooses judges,” Young said.

Young cited Obama’s past statement that he wanted to nominate a Supreme Court justice who had “empathy” for “people’s hopes and struggles.”

“It may well be that one’s life experiences can be appropriate and relevant when you’re sitting as a trial judge” acting as a factfinder, Young said.

In a situation where two witnesses are giving conflicting testimony, “understanding how the world works” may be useful in determining which witness is more credible, he said.

But in “determining whether the language of a statute or the Constitution means one thing or another, it seems to me your race or gender should have absolutely no role in a legal determination.”

He quoted Justice Sandra Day O’Connor’s statement, “A wise old woman and a wise old man will reach the same conclusion.”

“Of course we’ve got a ‘wise Latina’ ” who thinks differently, Young said, referring to Justice Sonia Sotomayor’s 2001 comment that caused controversy during her confirmation process.

Sotomayor said she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

‘Middle Class Values.’

Some have described Young as a conservative Republican, and right-leaning news outlet Newsmax listed him as number 39 on its 2015 list of the “100 Most Influential African-American Republicans.”

“I suppose those who label me consider me that,” Young said.

He acknowledged that his “political background has been in the Republican Party, and I don’t run away from the idea that some might think of me as a conservative.”

But Young thinks of himself “as being interested in the traditional values” that “have been beneficial to the country and to families over the years.”

Those values include “hard work, dedication, trying to be respectful and regardful of others and their property.”

“They’re just kind of basic middle class values, and I guess they’ve become ‘conservative’ in our culture today, but I don’t think of them” that way, he said.

It’s just “kind of the way I grew up.”

Reforms, ‘Customer Service.’

Young has made court efficiency a top priority.

“Basically it’s a kind of full-scale reenvisioning of how the judiciary should be functioning, to improve not only efficiency” but also access to courts, he said.

“When I arrived as the chief, the court and its administrative arm had been recommending to the legislature every two years that the number of judges that we had was too large, too numerous for the workload,” Young said.

He “finally got the legislature to pay attention to the surplus of judgeships,” and “negotiated a plan to reduce them over time,” he said.

The reduction of 40 judges will save taxpayers “$175 to $200 million” when complete, according to the Michigan Supreme Court’s 2015 annual report.

This “rightsizing” plan was part of a broader set of reforms including “introducing more technology, reengineering some of our processes and most important, establishing performance measures,” Young said.

Measuring performance is “fairly shocking” because “most judges consider what they do unmeasurable and invaluable in its own right,” Young said.

But “there are metrics that we can look at to see if we’re doing well enough.”

That includes “measuring what our customers felt about how they were being served.”

The “idea of talking about the public that we serve as ‘customers’ ” is a “fairly radical concept in judicial circles,” he said.

Young’s plan to survey customers made judges “a little upset” because “we probably disappoint at least 50 per cent of the people who come before us”—the losers.

But “we have now annually surveyed over 75,000 Michiganders,” and recent surveys show “the public was very favorably impressed by how they were being treated,” he said.

Race Relations

Young concurred with a decision finding that “reverse discrimination” claims didn’t have to meet a higher standard than other discrimination claims under the Michigan Civil Rights Act, in Lind v. City of Battle Creek, 681 N.W.2d 334 (Mich. 2004). Young—whose father was once thrown out of a library for being black—criticized dissenters for advocating that persons of one race should “bear a higher burden of maintaining an employment discrimination case than persons born of another race.”

Poletown Revisited

Young said one his most significant opinions was in the eminent domain dispute of Wayne Cty. v. Hathcock, 684 N.W.2d 765 (Mich. 2004), in which the state high court overturned its landmark 1981 Poletown decision.

Poletown allowed Detroit to condemn private property in its “Poletown” neighborhood—named after its many residents of Polish heritage—so that General Motors could build an assembly plant there.

Political activist Ralph Nader protested the displacement of Poletown’s residents, as did a New York Times editorial by William Safire, “Poletown Wrecker’s Ball.”

Poletown found that the condemnation was for a valid “public purpose” because it would “generate jobs for the city,” Young said.

“Well in Hathcock I ended up reversing Poletown as being repugnant to” the Michigan constitution, “as the people who brought it into being understood it,” Young said.

The court said in Hathcock that allowing the state to exercise eminent domain power for a “vague economic benefit” would “validate practically any exercise of the power of eminent domain on behalf of a private entity.”

Young said it’s “never an easy thing to overturn precedent, or at least it shouldn’t be.

SCOTUS Spectator

Soon after Hathcock, the U.S. Supreme Court took on a similar eminent domain question in Kelo v. City of New London, 545 U.S. 469 (2005) (83 U.S.L.W. 2012, 6/30/15).

“I went to see the argument because it was so interesting and deliciously similar to our own,” Young said.

The Kelo court held that “government seizing property from people and turning it over to other commercial interests was close enough” to a valid public use “under our federal constitution,” Young said.

“I think we got the better result.”

Kelo cited Hathcock as an example of how states can impose stricter restrictions on eminent domain power “than the federal baseline.”

Judicial Elections

Young was appointed to the court in 1999 to fill the vacancy created by Chief Justice Conrad L. Mallett Jr.'s retirement.

Young won an election in 2000 to finish the rest of Mallett’s term, later winning elections in 2002 and 2010.

The chief justice said that “temperamentally,” he’d rather “stay in my chambers and write illuminations like a monk” than be on the campaign trail.

But judicial elections are important because it’s “highly therapeutic” to the public, he said.

Elections allow “those like me” who decide “the fates of fellow citizens, to explain to the public how I decide cases.”

Further, “I wish I could have a say on some of the Article III judges who cohabit the judicial universe that I am in.”

‘Stumbled Into’ Law

Young said he “accidentally stumbled into the law as a career.”

While an undergraduate student at Harvard College, the chief justice envisioned that he “would be a government teacher.”

Young applied to Harvard’s graduate school of government and wanted to do a joint program with Harvard Law School, he said.

But “none other than Harvey Mansfield, who is still a professor of government at Harvard, called and welcomed me in and said by the way, we don’t think a serious student of government should do a joint program with the law school.”

“I told him to pound sand,” showing “adolescent hubris,” Young said.

Young “hated” law school, and it wasn’t until he spent a summer practicing at a Detroit firm that he discovered he “absolutely loved the law.”

“So I see my legal career as an entire fortuity, and I’m ever grateful for Harvey Mansfield suggesting I should not do a joint program.”

Young also accomplished his original goal of being a teacher—he taught as an adjunct professor at Wayne State Law School for more than 20 years, and now teaches at Michigan State University Law School.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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