Race shouldn’t be a consideration in the judicial process, two conservative Michigan Supreme Court justices indicated as they objected to the court’s creation of a “Diversity, Equity, and Inclusion” commission that will demand judges be loyal to the “woke” left’s race-based ideological agenda.
They were reacting to Administrative Order No. 2022-1, which, on Jan. 5, “effective immediately” formed the commission “with the initial goal of exploring issues related to the demographics of the workforce that support our judiciary and training within the judicial branches.”
The purpose of the 24-member Commission on Diversity, Equity, and Inclusion in the Michigan Judiciary is “to assess and work toward elimination of demographic and other disparities within the Michigan judiciary and justice system,” according to the order.
The commission, which was preceded by a Diversity, Equity, and Inclusion (DEI) Committee created in January 2021, will develop policies and standards to promote DEI, assist in eliminating disparities within the justice system, assist local courts in implementing DEI-related plans, and “increase participation of members from under-represented communities in judicial branch leadership.”
But Justice David Viviano registered a principled objection to the planned incorporation of the controversial, radical DEI ideology into Michigan courts.
In a dissenting opinion that was joined by Justice Brian Zahra, Viviano stated that diversity, equity, and inclusion is “a catchphrase that is politically fraught—and for that reason alone should be approached with extreme caution by the judicial branch.”
The court “failed to accord this matter the careful deliberation it deserves,” he wrote, adding that the commission came about “without any input from or even notice to this Court.” Despite “an expansive purpose statement,” the order “nowhere establishes the scope or meaning of the critical terms ‘diversity,’ ‘equity,’ and ‘inclusion.’”
“It is no small thing to leave unstated the meaning of ‘diversity, equity, and inclusion,’” Viviano wrote. “This catchphrase occupies disputed terrain in our politically polarized society.
“I am concerned that the Commission will endow these core concepts with meanings that will produce heated disputes and call into question the judiciary’s neutrality.
“The way to be equitable, diverse, and inclusive is to stop taking account of race and other protected characteristics,” Viviano wrote. “By plunging ahead, I believe that this Court, and the commission it creates today, will serve only to engender conflict and undermine the public’s faith in the judicial branch as impartial arbiters.”
The DEI Committee has already affected the functioning of the judiciary, according to Viviano. For example, it recommended the creation of a questionnaire to be used on prospective judges that requests information about the individual’s experience and training in DEI and includes DEI as a competency to be evaluated in the selection process. The State Court Administrative Office adopted the suggested policy and the questionnaire is now in use, he wrote.
“Two of the 10 questions now involve ‘diversity, equity, and inclusion,’ including one that asks the applicant to describe how he or she has ‘demonstrate[d] alignment with the judiciary’s commitment to diversity, equity, and inclusion.’”
The court’s seven members are elected by the public.
The two dissenters are both connected to Michigan’s Hillsdale College, a haven for traditional constitutionalist thinking.
Viviano, a Republican, received his bachelor of arts degree from Hillsdale in 1994. Zahra, also a Republican, serves as judicial adviser to Hillsdale’s chapter of the Federalist Society.
Chief Justice Bridget Mary McCormack is a Democrat—as are Justices Richard Bernstein, Megan Cavanagh, and Elizabeth Welch. Justice Elizabeth Clement is a Republican.
Welch was named in the administrative order as one of two initial co-chairs for the commission.
