Swearing-In Ceremony For Justice Stephen J. Markman

NOVEMBER 12, 1999

COURT CRIER: All rise. Hear ye, hear ye, hear ye, the Supreme Court of the state of Michigan is now in special session. You may all be seated.

JUSTICE KELLY: Good afternoon, ladies and gentlemen. It’s a great pleasure to welcome you here today. This is the investiture of the 103rd justice of the Michigan Supreme Court, the 103rd time that we put a new person on our Court in this state. It’s always an auspicious and delightful ceremony, and we have some really wonderful people here today to help us invest Justice MARKMAN.

Let me tell you that Chief Justice WEAVER and Justice CAVANAGH are unable to be with us today because of prior commitments. We regret that. Also, Justice CORRIGAN will have to leave early, also because of a prior commitment.

We’re pleased to have Mr. Riley here, to be our master of ceremonies, and I will turn the matter over to him at this point.

 MR. RILEY: Thank you Justice KELLY, and justices, members of the judiciary, ladies and gentlemen. Welcome to this special session of the Michigan Supreme Court for the investiture of the Honorable STEPHEN J. MARKMAN. Before beginning the proceedings, I’d like to call upon Rabbi David Nelson, of Beth Shalom Synagogue, also the chaplain of the Detroit Police Department, for blessing and the invocation.

 RABBI NELSON: Beth Shalom Synagogue, in Oak Park, was where STEPHEN J. MARKMAN was an outstanding student in our religious school and celebrated his bar mitzvah.

Eternal God, we acknowledge your sovereignty and that the very seal of your throne is truth and justice. We are assembled, on this day, to witness the investiture of the Honorable STEPHEN J. MARKMAN as a judge of the Supreme Court of the state of Michigan. We invoke, oh Lord, your blessing upon him and all his dear ones. Teach us, oh Lord, to remember the words of the ancient lawgiver, justice, justice, shalt thou follow that thou mayest live and inherit the land. And justice is the foundation which rests the whole structure of society. Teach us, oh Lord, to accept gladly the rule of reason, and the discipline of law. May we ever understand that rights are linked with responsibilities, and security and freedom are inextricably joined.

Bless your servant, STEPHEN J. MARKMAN, as he enters this honored position of judicial responsibility. May he bring to his duties a responsive heart and enlightened perception, and a determined will. May Justice MARKMAN so carry out the responsibilities of his office as to demonstrate how the law can be majestic in its impartiality, and warm in its human concern, rational in principle, yet sympathetic in application. And as he has shown over the years, Justice MARKMAN understands judicial balance and integrity, and that he profoundly comprehends the biblical instruction that judges must always be fair.

We pray that, oh Lord, you will grant him good health, insight and wisdom, and that spiritual fulfillment which is the most enduring reward of those who devote themselves to the betterment of our society. We mark this event in his life together with his family, his wife Kathy, his children James and Charles, in a spirit of tribute and festivity. We ask, oh merciful God, that you bless him and his dear ones. Help us all to be coworkers in fulfilling your will and achieving your purpose, and let us say, Amen.

MR. RILEY: Thank you, Rabbi Nelson. In 1973, the 10,000th lawyer was admitted to practice in Michigan. In the intervening twenty-six years, nearly 26,000 more lawyers have been added to the ranks, making a total, now, of nearly 35,000 lawyers. I submit to you that it takes a stouthearted man or woman to lead that many lawyers in the State Bar of Michigan, and I present to you, at this time, that leader, the President of the State Bar of Michigan, Alfred M. Butzbaugh of St. Joseph, Michigan.

 MR. BUTZBAUGH: Thank you very much, Mr. Riley. It’s a great pleasure to be here this afternoon, on behalf of all the lawyers of the state of Michigan, and to welcome Justice MARKMAN as the 103rd justice of our Michigan Supreme Court. Justice MARKMAN is well known for his integrity, scholarship, and his capacity to listen. I want to say, also, that we, as lawyers, understand the sacrifice and the commitment which Justice MARKMAN is making, which all the justices of the Supreme Court are making, and which all judges make. And we are deeply appreciative of that.

I have a personal note that I would like to say. About a month ago, I had the opportunity to have lunch with Justice MARKMAN, and I mentioned that my youngest daughter was married this summer in Portland, Oregon. And Justice MARKMAN’s eyes sort of glazed over, and he got a faraway look, and he said, “Portland, Oregon? That’s where Powell’s Bookstore is located.” And I said, yes, it is. He said, “I’ve never been to Powell’s bookstore,” and I said, “Well, I have.” And I could just see a touch of envy. Well, I thought maybe because this is such an auspicious occasion, I could bring Powell’s Bookstore here today, but I couldn’t. But I did bring some bookmarks from Powell’s Bookstore, and they list the one hundred best books of the 20th century, the one hundred best nonfiction books of the 20th century in English, and the one hundred best novels of the 20th century in English, and my guess is that Justice MARKMAN has probably read most of these, but as a remembrance of today, and of Powell’s Bookstore, Justice MARKMAN, I present these bookmarks.

MR. RILEY: The Michigan Constitution provides that a vacancy on the Court, caused by death or resignation, shall be filled by appointment for a term expiring January 1 after the next general election. The appointing authority in the constitution is the Governor, who’s had an opportunity to point out to the electorate the man or woman who would be an outstanding jurist to join that Court. Governor Engler has had three picks for the Michigan Supreme Court, to replace Justice DOROTHY COMSTOCK RILEY, Justice CONRAD MALLETT, JR., and Justice JAMES BRICKLEY. He has chosen Justice CLIFFORD TAYLOR, Justice ROBERT YOUNG, JR., and now Justice STEPHEN J. MARKMAN. It’s my honor to present to you that appointing authority, your Governor, the Honorable John Engler, and maybe he’ll tell you how he does it so successfully.

 GOVERNOR ENGLER: I thank you very much, Wallace Riley, justices of the Michigan Supreme Court, members of the Michigan judiciary, Honorable KELLEY, ladies and gentlemen and Justice MARKMAN. Maybe you’ll tell us how you do it. An overflow crowd in this room is rather remarkable. Congratulations to all of you for being present. I am certainly proud to be here today and to welcome to the Michigan Supreme Court a jurist who brings with him unquestioned integrity and intellectual rigor. Justice MARKMAN embodies everything one attributes to a Supreme Court justice: independence, compassion, fairness, respect for the law, and the desire to see the rule of law upheld.

When I announced Steve MARKMAN’s appointment in late September, lawyers and judges from across the political spectrum praised Justice MARKMAN. He was praised in the media. The Detroit News called Judge MARKMAN, “a choice for excellence.” Even my critics at the Free Press said, “No better person could have been selected to replace Jim BRICKLEY than Steve MARKMAN.” I quote from their editorial. “He brings a strong legal background and an excellent reputation for integrity and judicial scholarship. Judge MARKMAN gives the Court an intellectual honesty and a willingness to judge cases on their facts.” Now, when the Free Press and News agree, that’s news.

This is, as Wally Riley indicated, the third opportunity that I’ve had and the third privilege, and I view it as such, to appoint a justice to the Michigan Supreme Court. It is a responsibility that I approach with the utmost gravity and seriousness, knowing that my decision affects the lives of all of us who live in Michigan.

In contemplating judges and lawyers who could function effectively, Judge STEPHEN MARKMAN came to the top of my list. His in-depth knowledge of constitutional issues and respect for the law will serve the people of the state of Michigan well. His thorough and analytical opinions have contributed to an improved judicial environment in Michigan. A profile in the Wall Street Journal noted Steve MARKMAN’s earlier effectiveness in getting drug and violent crime recidivists off the streets.

Steve MARKMAN has served in every branch of government, often at the highest levels. He served as chief counsel to the United States Senate subcommittee on the constitution; was nominated by President Reagan as an assistant attorney general of the United States, heading the Office of Legal Policy in the Department of Justice; was nominated by President Bush as U.S. Attorney for the Eastern District of Michigan. Both of his presidential appointments required Senate confirmation. And again, in a tribute to Steve, he passed those tests with flying colors.

It was in ’95 that I had to lure Steve from private practice. I sought to appoint him to the Court of Appeals for the 4th District. That’s a sprawling, sixty-county district. Well, four years later, two elections later, Steve MARKMAN now takes his seat on Michigan’s highest court.

And so today, Steve, we congratulate you and recognize, Steve, that you join the Supreme Court at a critical time in its history. Our founders designed divided government, assigning the duty to the Senate and House of Representatives of writing the laws, the executive of administering the laws, and the judiciary of interpreting the laws. The vesting of legislative, executive, and judicial powers in the Senate and House, Governor, and our one court of justice, headed by the Supreme Court, still leaves the challenge posed in Article 3, § 2, that no person shall exercise powers properly belonging to another branch.

Obviously, four of seven justices in the branch, having the power to interpret laws, could exercise virtually unlimited power. Commendably, the Michigan Supreme Court today has chosen to exercise judicial restraint. This restraint represents a welcome return to first principles, and a much needed antidote to judicial activism. Few things have undermined the rule of law more than seizing from our elected legislators the right to debate, compromise, and defeat or enact the issues of the day.

When elected officials are grappling with problems, of course, it can be frustrating. The process can take too long or move too swiftly, but the people know, regardless of outcome, they can always throw the rascals out. If a court finds an new constitutional right or enters the fray substituting its opinion for that of the legislature, citizens are left without a remedy. The resulting cynicism and mistrust become serious infections in the body politic.

In Michigan today, I believe an examination of the health of our judiciary would show us to be perfectly sound. A second opinion was recently offered by Victor Schwartz, one of America’s leading authorities on torts. He told a national audience in Washington, “Today’s Michigan Supreme Court is the finest in the nation.” High praise, and in my opinion, well deserved. So, Steve, as you join this family, I, today, wish to offer congratulations to you and your family as you take this next step in your distinguished career and become, as Justice KELLY noted, the 103rd justice in the history of the state of Michigan.

MR. RILEY: Here is Michigan’s former forever Attorney General, Honorable Frank Kelley.

 MR. KELLEY: Justice KELLY, distinguished members of the Court, members of the federal and state judiciary, my fellow lawyers, ladies and gentlemen, Governor Engler.

STEPHEN MARKMAN and I first met when he became United States District Attorney in Detroit in 1989. I was Attorney General at the time, and we worked cooperatively on some major investigations. From that experience, I developed professional respect for him that comes from working together on arduous tasks. Then, in 1995, when Mr. Markman became Judge Markman, by appointment of the Governor, to the Michigan Court of Appeals, my staff in the office of Attorney General brought many cases before his panels, and I was always impressed by the legal scholarship and fundamental fairness of the decisions he wrote.

I am now all the more pleased that Judge MARKMAN has become Justice MARKMAN of our state Supreme Court by virtue of the wisdom of Governor Engler, in appointing a legal scholar to the bench. As one who originally became Attorney General by appointment and not election, I can understand the elation that Steve MARKMAN and his family feel this day. To be requested by the Governor for a high position of trust is a most gratifying experience. I remember how I felt 38 years ago next month, and I can well imagine how Justice MARKMAN feels today.

And so, I want to express my warmest congratulations and wish you only personal satisfaction, success, and happiness.

MR. RILEY: Next, we have an outstanding jurist from the United States Circuit Court of Appeals for the Federal Circuit, from Washington, D.C. I present to you the Honorable Randall Rader.

 HONORABLE RANDALL RADER: Justices, Mr. Governor, ladies and gentlemen, and may it please the Court, I have, in times of dissension and division in our nation’s capitol, often wondered if our nation would have the will and skill to recreate the miracle of its founding. Where, I have mused, would we ever find, amongst modern constitutionalists, anyone even approaching James Madison and George Washington, and Edmund Randolph, and others? If we were to assemble forty-one constitutional scholars today, from around this vast nation, to attempt to recreate the founding of this republic, that group would need to include STEPHEN J. MARKMAN, one of the leading constitutionalists of our generation.

Now, despite my high assessment of Steve’s judgment, and skill, and integrity, you might question his judgment when you realize that soon after he finished his legal education, he went to Washington. There, he began his career as a counsel in Congress, and became part of the problem, not the solution. We all have our moments of youthful indiscretion.

Swiftly, Justice MARKMAN rose to become one of the leading counsels of the powerful Senate Judiciary Committee. He was the Senate’s chief constitutional scholar during his era, and I had the personal opportunity to assess the vast reputation he had in that body. I can recall myself as his successor receiving calls from committee chairman and, on occasion, even the Majority Leader, and they would ask me some complex, constitutional question, inquiring whether it was permissible. I, finding some of these questions esoteric, would ask for time to research the problem and their eyes would glare at me, and in that moment, I would realize that my predecessor never needed the time for research. Steve had always thought in advance of the problem and had the answer, and his successor looked a little miniature in comparison.

Justice MARKMAN had perhaps one of his finest moments as a Senate counsel when he worked on the balanced budget amendment, crafting one of the fine, stately amendments, the first to pass the Senate, narrowly failed to receive two-thirds, though receiving a majority in the House. This amendment was the first in the modern era to achieve that, and really paved the way for other advances in constitutional scholarship when the Senate, in those days, considered matters such as religious liberty, constitutional restraints on the judiciary, it was always Counsel Markman who was at the forefront of that reasoning process.

In 1984, he was among the chief authors of the first major crime bill in decades, having helped craft the sentencing guidelines and the bail reform provisions. Despite his work on some of these large and significant pieces of legislation, he always had time for projects on the side. I remember him carrying around a heavy group of papers. And day after day, I saw these papers and I would ask what is this, Steve? And he would say, it’s my project. And I finally looked. He was carrying around a revision to remove gender bias from the entire federal code. He was reading every line of the federal statutes to ensure that they were gender neutral.

He wrote a history of the various amendments to the U.S. Constitution. Throughout his time in the U.S. Senate, despite the various and diverse viewpoints of people there, Counsel Markman was noted for his ability to work with great friendship and effectiveness with everyone that came into his office.

Justice MARKMAN’s remarkable performance on the Senate Judiciary Committee, as the chief constitutional scholar, led to an even loftier appointment, when President Reagan appointed him to be the assistant attorney general for the Office of Legal Policy. This required confirmation by the United States Senate. I can remember Steve was worried. We sat in his office, and I said Steve, don’t worry. You’ve worked here for many years. These Senators know you. He says, that’s what worries me. Steve was confirmed unanimously by the Senate, and given the job which is characterized as among the most significant jobs a chief executive can perform, that of selecting judicial scholars to protect the constitution in the federal judiciary. This was the job which Attorney General Markman was asked to do for President Reagan, and did it with great distinction, selecting many like himself, who revered the constitution dearly.

He also had responsibility for long term policy initiatives within the Justice Department, and many of those things which he put into action are now coming to fruition, streamlining litigative processes, improving the entire administration of justice.

In conclusion, preservation of the constitution requires much of the same will and skill than engendered its creation. Justice MARKMAN, I know from personal experience, has that skill and that will. Based on his remarkable service to this nation and the constitution, I can say that the people of Michigan will undoubtedly find the same wholesome praise for his work that his colleagues, during his years of federal service, have found. The state of Michigan is very fortunate to have, as its 103rd justice, Justice STEPHEN J. MARKMAN.

MR. RILEY: Thank you, Judge Rader. On a personal note, I’ve known two brave ladies in my life. One is my wife, DOROTHY COMSTOCK RILEY, and the other is the Honorable HILDA GAGE of the Michigan Court of Appeals. Please welcome Judge GAGE.

 HONORABLE HILDA GAGE: I never had the opportunity to sit with Steve, and perhaps that’s why he invited me to speak in this matter. But I’ve spoken with him, and I’ve read his works, and I’ve heard of him a long time, and I’ve known him socially, and I am indeed honored to be here among all of these August speakers.

When I first got on the Court of Appeals, it was a real shock. It’s a very isolated position, and while my colleagues were warm and welcoming, and I love every one of them, you’re still alone. I was talking to Judge Rader before we came down here and he was saying the same thing, a former trial judge himself.

When I was sitting on the trial bench, we used to talk about the Court of Appeals, because we were down there in the battlefield, and we used to say the Court of Appeals would come after we’d done the hard work, and they’d bayonet the wounded. And that’s pretty much the way I felt when I got up there. I had sat on the Court of Appeals before, but I never really appreciated the isolation. So, it was really very nice to get a phone call from Steve now and then.

And the first phone call I got, he had read one of my dissents, and he made a very cogent statement regarding how important the dissent was. And he was glad I had spent time on it. In fact, I have the feeling that he thought the dissents were more important than the majority opinions. But it was a good conversation, and I felt comfortable, thereafter, discussing matters with him.

You know, when you’re sitting on the Court of Appeals, you’re reading other people’s actions, and I thought I’d share a well-known transcript with you. It was a murder trial, and the defense attorney was cross-examining the pathologist, and some of you may have read this one. But the attorney said, “Before you signed the death certificate, Doctor, had you taken the pulse?” and the coroner said, “No.” He said, “Did you listen to the heart?” The coroner said, “No.” “Did you check for breathing?” and the coroner said, “No.” So, the attorney said, “So then, when you signed the death certificate, you weren’t sure the man was dead, were you?” And the coroner said, “Well, let me put it this way. The man’s brain was sitting in a jar on my desk, but I guess it’s possible that he could be out there practicing law somewhere.”

The man read prodigiously and productively. My guess is his nightstand isn’t piled with books that he wants to read, like I have on mine. He’s probably gone through them. I asked around in order to get a complete picture of Steve as a jurist, and he’s so well respected. I called my colleagues from different political persuasions, from different parts of the state, and it’s incredible how they all use the same adjectives. He’s flexible; he’s a consensus builder; he is a good listener. His style at conference after we’ve heard argument, is not to come in and put his position first. He listens, he throws out those balloons, those intellectual remarks. He waits to hear what everybody has to say, and then he speaks. His opinions are concise. They’re of the type we all aspire to. They can be understood by the ordinary citizen and yet admired and appreciated by the most learned.

And lastly, I want to mention his temperament. This is, by far, the most even tempered, courteous individual one could ever hope to encounter. He has a fundamental tolerance of opposing views. I certainly hope, at home, he isn’t that way. It would be awfully dull.

But he went to one of the busier circuit courts recently—I heard this story—and he got into that judge’s meeting. They had invited him, and then, they pounced on him. And, as in several circuits, they had sent two names to the Supreme Court for the Chief Judge nomination. And there were various factions, and they’re waiting and waiting. And they asked, what is taking so long? And Steve, in true Steve MARKMAN style, responded, “Well, we have just finished the difficult and controversial selection in the fifty single-judge courts, so now we can proceed with the balance.”

Steve, congratulations, and, in my closing remarks, there’s been so many intellectual comments, I’m going to mutilate Dr. Seuss a little. Today is your day, you’re off to great places. You have brains in your head, you have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own and you know what you know, and you are the guy who will decide where to go. And will you succeed? Yes, you will indeed, ninety-nine and three-quarter percent guaranteed.

MR. RILEY: See what I mean? Hal Helterhoff is a former special agent in charge of the Michigan office of the Federal Bureau of Investigation, and a longtime, good friend of Justice MARKMAN.

 MR. HELTERHOFF: I am indeed honored to be with such a distinguished group to witness the investiture of Steve MARKMAN. Our relationship began when I was the special agent in charge of the FBI for the state of Michigan, and Steve was appointed the United States Attorney for the Eastern District. One accomplishment that has not been mentioned today is that Steve has spoken to four Presidents, all by himself, at Mt. Rushmore.

Steve worked closely with all the federal, state, and local investigative agencies in pursuing the many federal prosecutions during his tenure. He also took the initiative to prosecute many dangerous drug and firearm crime offenders who were charged locally, and then he would also charge them federally, thereby enabling and assuring longer sentences. We worked aggressively on organized crime investigations, general crime investigations, and on some sensitive public corruption investigations.

And with the sensitive investigations, Steve had also become sensitive to any criticisms of the United States Attorney’s Office and, frankly, could become quite agitated. I remember one time, during our numerous confidential meetings, he was holding up an article and saying, how can they say this about me and my office? And I said, Steve, you just have to understand now that you are in the arena, and these things happen from time to time. A few weeks later, I called Steve one morning, and asked him if he had seen a most critical article about the FBI in the morning newspaper. And Steve said, yeah, I saw it, you know? Really no problem. And I said, Steve, this is criticizing the FBI in every paragraph. The FBI did this, the FBI did that, the FBI’s out of control here. And I said, you and your office were with us every step of the investigation and there’s not one mention of the United States Attorney’s Office here. He said, oh, well, everyone knows we’re behind you.

My FBI career was fulfilled with Steve MARKMAN at the helm. He allowed the FBI to work our cases with aggressiveness and to use all our investigative techniques, such as the use of undercover operations, informants, and court-authorized wire taps. And I repeat, court-authorized wire taps. Once Steve counseled and concurred with the investigation, you just knew it was the lawful and the right way to go.

Steve had that unusual ability to not only lead, but to listen. To my delight, he would listen to the opinions of the special agents working the cases before making his final, prosecutive decisions. He did not seek credit for himself, but gave credit to everyone else.

Steve was not just a brilliant lawyer, but was a practical, fair prosecutor. Steve was not just a federal figurehead, but was a synthesizer among the other investigative agencies. Steve was not just a serious-minded individual, but was a person with one of the best senses of humor I’ve ever met. Steve was not just another professional I met, but was and will always be one of my finest of friends.

So, I say to you, Mr. Governor, what a fine selection you have made of someone who has been in the arena, and who will continue to serve with dignity, integrity, and distinction. Congratulations, Mr. Justice MARKMAN.

MR. RILEY: Well, we’ve had a long list of speakers, all paying tribute to Justice MARKMAN. We’re now at the last, but certainly not the least. He’s one of those 35,000 Michigan lawyers that I spoke about, who practices daily, before our courts. And he’s one of the best and the brightest, attorney Neil Fink.

 MR. FINK: This is a great honor to be asked to share in this joyous occasion for Justice MARKMAN and his family, and for all of his friends. I ask myself, am I really here? I am a card carrying, dues paying member of the National Criminal Defense Lawyers Association. Steve honored me by asking me to speak from a defense perspective, and it was an easy task to undertake. If one would try to think of a negative thing about Steve, they couldn’t do it honestly.

I did not know him before he came to Michigan as the United States Attorney for the Eastern District of Michigan. In fact, he was the first appointment out of our city that was not a member of the practicing bar in the local area in many decades. And the defense bar was apprehensive.

Early on in his tenure, we had one of those meetings where representatives of the criminal defense bar met with Mr. MARKMAN and his top aides to discuss an issue that was ripe for resolution. I had tired of going to those meetings because the door was always open, but when we left, nothing much was resolved. But we got lunch at the Caucus Club. So, I went along. And I had the good fortune and good opportunity of meeting Steve MARKMAN.

The interchange between defense counsel and the prosecutor was not a matter of form, but of substance. The man across from me, Steve MARKMAN, was taking notes vigorously, and you have to understand that having an exchange of ideas with Steve, whether it be at the United States Attorney’s Office, or in a good Chinese restaurant that we both like in Royal Oak, you are challenged. Any idea is challenged. It is similar to a good oral argument in front of an appellate court, the sense of debate. And if your idea does not have substance and does not have legs, you will be intellectually cornered. But if it does have substance, it will be listened to, and it will be thought about, and it may even be honored.

We left that meeting, and got a call a week later that demonstrated that Steve not only had an open door, but that he had an open mind. He agreed with the defense position. As we got to know Steve, certain things became very evident. He was a person who was very hands-on, and took his job very, very seriously, but never, never took himself seriously. The word “I” is not a major part of his vocabulary. He understood that policy must be made, and he had fair and honorable policies. But he also understood the term, “prosecutorial discretion,” which, as a minister of justice, put him in a quasi-judicial position, and he never, never backed away from exercising that discretion, and never hid behind policy in exercising that discretion. He was a dream to work with, from the defense perspective, because he was honorable, he was intelligent, and he was intellectually honest.

One of the things that Steve accomplished just as a citizen, doing it as a citizen, that was very important and so telling about him, was he was the first United States attorney in my recollection that ever seriously took on the gangs of southwest Detroit. And he didn’t do it without some resistance from those within his office who thought that perhaps this was too low profile and belonged in what was then Recorder’s Court.

But that told the whole story about Steve. He isn’t about low profile, he isn’t about high profile. He is about doing the right thing. He understands discretion. He never once used a press conference or a press release for self promotion. Usually, he’d be standing in the background and a spokesman for the law enforcement agency would be talking about the case. His press conferences were to inform, not to self promote.

As Steve went on in his career as U.S. Attorney, people began to respect and understand that he, as a United States Attorney, had that very special understanding that many that have gone before him, and have been honored by our profession with awards in their name, have understood, and I see Attorney General Kelley was a close friend of Bill Cahalan’s here today. The late Bill Cahalan has an award named after him. I see MAURA CORRIGAN, who was good friends with Lenny Gilman, and Lenny has been honored by the Federal Bar Association. Some of you who knew John O’Brien, a former prosecutor, who went on to be a great judge. He has an Oakland County Bar Association Award named after him.

And the common denominator with those gentlemen that are no longer with us, and Steve, who, thank God, is alive and well, is they understood the system. They understood that everybody needs to be doing their job in order for the system to work. The defense lawyer has to be defending vigorously. The prosecutor has a different role. He is a minister of justice, and as the Supreme Court decision says, he must deal hard blows, but fair blows. And the judge must be fair, and neutral, and impartial. And when those three things are working, then justice is working. And he understands that.

You will never have heard any colorful epithet about a defendant coming out of his mouth publicly or privately, whether it be Timothy McVey or whether it be a parking offense in the Federal Building. He is just not about that. He is a scholar; he is a great man; and he is going to make a great addition to this Supreme Court. And Governor, maybe other appointments may have been politically advantageous, but the Governor, as he has done time and again, has done what he thought was right, and I thank the Governor for this wonderful present, at the turn of the century, to the people of the state of Michigan.

MR. RILEY: Well, I’m sure that you’ll agree, from the succession of speakers that you’ve heard this afternoon, that Justice MARKMAN is entitled, now, to receive the indicia of his office. And so, I would call upon Justice ROBERT P. YOUNG, JR., and the Markman family to come up, and we’ll now have the robing and the administration of the oath of office by Justice KELLY.

 JUSTICE YOUNG: I want to spend just a very brief moment talking about Steve, the man. I’ve known Steve before we both hit the judiciary. Steve preceded me to the Court of Appeals by a matter of months, and I’m glad to see that’s been reversed at the Supreme Court. You’ve heard about his inordinate intellect, and that’s all very true. But I think one of the most remarkable things about Steve is that he is genuinely one of the most self-effacing men I know, and totally without cause. He is a genuinely decent human being. And he brings to his jurisprudence that kind of receptivity to persuasion which is essential to a judge or a justice. He is genuinely open to ideas. And that’s what we do on the Supreme Court. We are dealing with the intellectual aspect of law. And I can’t think of anybody who is more well suited for the task, and who I would more enjoy serving with than Steve. I think he’s a wonderful addition, Governor, and I personally congratulate and thank you for this addition.

JUSTICE KELLY: Steve, I know what an important moment this is in your life, and I’m honored and very pleased, personally, to have the opportunity to swear you into office.

JUSTICE MARKMAN: Thank you, justice.

JUSTICE KELLY: Please raise your right hand and repeat after me. I do solemnly swear . . .

JUSTICE MARKMAN: I do solemnly swear . . .

JUSTICE KELLY: . . . to uphold the Constitution of the United States of America . . .

JUSTICE MARKMAN: . . . to uphold the Constitution of the United States of America . . .

JUSTICE KELLY: . . . and the Constitution of the great state of Michigan . . .

JUSTICE MARKMAN: . . . and the Constitution of the great state of Michigan . . .

JUSTICE KELLY: . . . and to faithfully perform . . .

JUSTICE MARKMAN: . . . and to faithfully perform . . .

JUSTICE KELLY: . . . the duties of the office of Supreme Court Justice . . .

JUSTICE MARKMAN: . . . the duties of the office of Supreme Court justice . . .

JUSTICE KELLY: . . . to the best of my ability.

JUSTICE MARKMAN: . . . the to best of my ability.

JUSTICE KELLY: Congratulations.


JUSTICE KELLY: I’m looking forward to working with you.

 JUSTICE MARKMAN: Thank you. Probably the best advice that I have received in the last several days is that it is all downhill from here. Governor Engler, General Kelley, justices, and judges, and friends, thank you all so much for taking the time to be here this afternoon. I am honored by your presence, although I know that it is the integrity of the justice system, as well as that of our constitutional processes, that we principally honor here today. I am, of course, also deeply honored by the Governor in conferring upon me this position, in particular because, in my judgment, there have been few Governors of Michigan, or of any other state, who have taken more seriously their constitutional responsibilities in connection with the judicial branch of government.

As have most of my 102 predecessors, I would very briefly like to share with you what I hope I can contribute to the people of Michigan in my new position as Supreme Court Justice. This is a statement of judicial philosophy, but not a judicial philosophy that has been the subject of debate and discussion in our law schools, our editorial pages, and our political campaigns. I am, of course, aware of this debate and expect to participate in it in a variety of ways, on and off the court. I do come to the bench with some perspectives about the great judicial questions of our time—the meaning of “separation of powers,” approaches to the interpretation of statutes and constitutional provisions, and how properly the “judicial power” ought to be exercised. Obviously, the bench and bar in Michigan, as well as the public, have increasingly become participants in this debate.

But there is another realm of judicial philosophy that we must not allow to be obscured by this ongoing jurisprudential and constitutional debate.