Attorney Gen. v. Bd. of State Canvassers, Docket Nos. 154862

500 Mich. 903

888 N.W.2d 57 (Mem)

ATTORNEY GENERAL, Plaintiff–Appellee,

v.BOARD OF STATE CANVASSERS and Director Of Elections, Defendants–Appellees,andJill Stein, Intervening Defendant–Appellant.

Donald J. Trump, Plaintiff–Appellee,

v.Jill Stein, Intervening Defendant–Appellant.

Docket Nos. 154862

154868

154886

154887.

COA Nos. 335947

335958.

Supreme Court of Michigan.

Dec. 8, 2016.

Statement of Chief Justice Young Granting Intervening Defendant–Appellant's Motion to Disqualify

YOUNG, C.J.

As I have previously stated, anybody can make a list.¹ In this regard, after serving as a jurist for 21 years, 18 on this Court, I fully acknowledge that, at the age of 65, the probability of my being selected and appointed from the president-elect's infamous list of United States Supreme Court potential appointees is extraordinarily remote.² Indeed, the oldest justices ever appointed in the history of the United States Supreme Court were approximately my age at the time of their appointment.³ The conflict supposed by intervening defendant is both speculatively hypothetical and, in my case, improbable.

In the normal course of events, I believe that justices have a duty to sit on cases that come before the Court and should disqualify themselves only when the conflict is real and so patent that recusal is necessary.⁴ This duty to sit is required because justices who recuse themselves cannot be replaced, and every disqualification alters the composition of the Court the citizens have chosen. As significant, disqualifications disrupt the decision-making and process in a particular case that only a full complement of justices can provide. As I have previously written, recusal is mandated whenever a judge is actually biased and cannot impartially hear a case.⁵ I have no actual bias, and the intervening defendant makes no claims to the contrary.

After the disintegration of the political question doctrine and such cases as Bush v. Gore,⁶ courts are increasingly called upon to settle frank political questions. Now, more than ever, a bit of judicial restraint is required to resist the calls of political sirens who urge the courts to engage in politics by another name.⁷

With reluctance, and for being a name on a list,⁸ I grant intervening defendant's motions for disqualification because of the unique circumstances of this case—a challenge of the state's delegation to the College of Electors assigned to the president-elect—that has brought national attention to this matter. I do so in order that the decision made by my colleagues in this case will not be legitimately challenged by base speculation and groundless innuendo by the partisans in this controversy and beyond.

1 Chad Livengood, The Detroit News, Young on Trump's List for High Court Nominations< http://www.detroitnews.com/story/news/politics/2016/09/23/aide-young-trumps-list-high-courtnominations/90900822/> (posted September 23, 2016) (accessed December 6, 2016).

2 Indeed, I am confident that the only two sexagenarians guaranteed to never be confirmed by the Senate are me and my law school classmate, Judge Merrick Garland.

3 Justice Horace Hannon Lurton was 65 years old when he was appointed to the Court in 1909. Justice Charles Evans Hughes was 67 years old when he was reappointed to the Court in 1930, having previously served between 1910 and 1916. In modem times, Justice Ruth Bader Ginsburg, aged 60, was the oldest justice appointed.

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