“Totalitarianism has no place in America. Has it arrived? Well, that’s a question for another day,” writes Michigan appellate judge Mark Boonstra in the opening of his concurring opinion1 striking down the state’s ban on vaping products. A footnote defines totalitarianism, cited to the Oxford American Dictionary.
It’s the type of introduction expected of a high-school political science paper, and it matches the level of jurisprudence that follows.
Although the question of totalitarianism’s arrival — one of 12 rhetorical questions that Boonstra asks2 — is apparently best left for another day, Boonstra will still answer it in the affirmative. The titles of the authorities he consults are a good lesson in judicial impartiality:
- The Tyrannical Soul of Gretchen Whitmer
- The Worst Governor in America: Gretchen Whitmer
- A Dictator in Lansing
- Gretchen Whitmer: A Dangerous Object Lesson for All Americans
- MI Dem Gov Wins the Prize for Orwellian Overreach
These, along with other articles calling the Michigan governor ‘Mussolini’, ‘tyrant’, ‘despot’ and ‘dictator’, all discuss Whitmer’s response to the Coronavirus pandemic. In fact, Judge Boonstra spends 5 full pages (out of his opinion’s total 12) printing full quotations from these Coronavirus opinion pieces — in a case about vaping.
“But what does COVID have to do with vaping?”, Boonstra asks himself before you can. “Well, maybe nothing,” Boonstra answers himself, before explaining that COVID has everything to do with vaping. And also totalitarianism.
Complete with quotations from Ronald Reagan, Newt Gingrich, and the Bible, Judge Boonstra’s concurring opinion in a Court of Appeals case about vaping became a condemnation of the governor’s response to Coronavirus.
But what does COVID and vaping have to do with the political advantage of judicial incumbency? Well, maybe nothing.
Michigan is a state with elected judges, ostensibly to create greater accountability to the public. Nationwide, most judicial elections are uncontested, and in contested elections, the incumbent has an estimated 20-30 percentage point advantage over any challenger.3 It is common for a retiring judge to leave before the actual end of their term to let the governor appoint a replacement. Their replacement then gets the incumbency advantage, and will often run unopposed.
Boonstra was appointed to the Court of Appeals to fill an open seat in 2012. He ran unopposed in 2014. He is so far running unopposed in 2020.
Treating judges like politicians is not the way to create judicial accountability; treating them like credentialed experts is. A system where a committee of peers reviews and nominates potential judges to the governor for appointment would go far in addressing many of the present issues with electing judges.