On this week’s podcast, cohosts David Beard and David Nir spoke with Justice Richard Bernstein of the Michigan Supreme Court, the first blind justice in the court’s history. Justice Bernstein is up for reelection this November, defending the narrow 4-3 majority that Democrats have on the court.
They also discussed this week's primaries, including a MAGA sweep in New Hampshire, and Lindsey Graham's inexplicable decision to force Republicans to talk about his national ban on abortion.
You can listen below or subscribe to The Downballot wherever you listen to podcasts. You can also find a transcript for this week right here. New episodes come out every Thursday!
Tuesday wrapped up the 2022 primary season with elections in New Hampshire, Rhode Island, and Delaware. In New Hampshire, it appeared to be the same old story for the GOP establishment.
Beard said, “Shockingly, more moderate or establishment—we don't really want to call them moderate, but establishment GOP candidates ran against Trumpist candidates, and the Trumpist candidates won. Of course, some people will go and try to blame Democrats somehow for all these Trumpist candidates continually winning GOP primaries. But ultimately, I think Republicans need to look inside, look at themselves, as to why this keeps happening.”
In the Senate race, incumbent Democratic Sen. Maggie Hassan is going to be facing retired Army Brigadier Gen. Donald Bolduc, who narrowly won over the more establishment candidate, state Senate President Chuck Morse. Similarly, in the First and Second district, Trumpist candidates like Bolduc also won. Caroline Levitt was the more Trumpist candidate in the First district. She overcame very heavy spending directed at her to beat the 2020 Republican nominee Matt Mowers, who was unable to hold on for a rematch against Democratic incumbent Congressman Chris Pappas. And finally, in the Second district, which is in Western and Northern New Hampshire, former Hillsborough County Treasurer Robert Burns defeated Keene Mayor George Hansel, again by a narrow margin, to face Democratic incumbent Annie Custer.
As Beard explained, all of these races are expected to be close, because Biden won all of these districts and the state overall, but narrowly: “They were certainly seen as very prime pickup opportunities. But with these more Trumpist extreme candidates who have some really crazy past statements in their history that Democrats are going to go after them on, it makes it much tougher for the Republicans and much more advantageous for the Democrats to hopefully hold onto these seats in November.”
Another major event this week came out of South Carolina on Tuesday, where Sen. Lindsey Graham introduced legislation proposing a national ban on abortions at 15 weeks. This generated tremendous consternation and unhappiness from within the GOP ranks.
“Really, the last thing Republicans want to be talking about right now is abortion, and the even “laster” thing they want to be talking about right now is a ban on abortion,” Nir said, contextualizing the situation. “Lindsey Graham just ensured that this topic will get even more life and get even more play and that there will be even more headlines that feature the words Republican National Abortion Ban. And sure enough, there have been plenty, along with lots of articles talking about how Republicans are in disarray.
Beard agreed:
It is a really inexplicable decision by Lindsey Graham. And I think it really goes back to the ideas, the Republicans are really challenging the idea of how bad of a campaign can you run and still maybe get away with it in a bad midterm year? We'll see if they can do it, but they are trying their best to run the worst campaign possible to see if they can still pull it off. And this recent coverage of Graham introducing this bill reminded me of an article that I had saved from this past June, just a few months ago, from New York Magazine, by Ben Jacobs. And it was titled 'Things Will Be Fine': GOP Insiders Doubt Overturning Roe v. Wade Will Haunt Them in the Midterms.
Next, the hosts welcomed Bernstein onto their show.
Nir opened by asking how Bernstein’s disability has affected his approach to the important work he does: “We do have so much to talk about, but the first thing I would like to ask about is, you have been blind since birth, and I'd like to know how that has shaped and affected your work, first as a lawyer and now as a justice?”
He also pointed out that Bernstein leans into this part of his identity, with his website URL being theblindjustice.com.
Bernstein had this to say about the additional depth of life experience he brings to the table as a blind justice:
You know what, that's the beauty of being the blind justice. Right? Because justice is blind, but ultimately on a more serious note, it really makes you a better judge because the best type of judge is the kind of judge who doesn't have prejudice. And what is prejudice? Prejudice ultimately arises when you actually see someone, when you visualize somebody, and not being able to see, for all intents and purposes, allows for you to not prejudge. So I think for all intents and purposes, the beauty about being blind is that you ultimately live up to the symbol of the justice system, which as we all know, the symbol is a blind lady. And I think that's really, the idea is that you should be blind to who comes in front of you.
But I think ultimately when you look at what it represents and what the meaning of it in a very intense fashion is that I think your question goes to, what is it that really makes a good judge? And my response to you would be that it's all about struggle, it's about adversity, it's about challenge, it's about hardship. The best type of judges are the judges who have to live a more difficult life, who are judges that understand what it means to really face struggle, what it means to be counted out, what it means to face difficulty, what it means to face discrimination. I just think at the end of the day, when you live a life of struggle, it ultimately allows for you to serve in this position better because you're able to relate, understand, and appreciate the hardships, the challenges, and the difficulties of those who ultimately come before you.
Nir also asked Bernstein about his run for the state Supreme Court in 2014: “I'm curious to know, was this an idea you personally came up with or were you recruited? And then once you did decide to run for office, was there any hesitancy among voters about electing a blind justice? How did you communicate with voters? And did you have any hesitancy yourself?”
On his candidacy for the state Supreme Court, Bernstein had this to say:
What was remarkable what happened in 2014 was even though I just got dramatically outs spent, my attitude was, all right, I'm going to get outspent, but you know what I'm going to do? I'm going to out work. I'm just going to out work. I got a lot of energy, I got a lot of passion. I believe in what I'm doing. I got a sense of mission and focus. And so as far as I was concerned, fine, you want to outspend me? That's fine.
Of course my campaign slogan was, in fact, blind justice. Blind justice. And what was fascinating was is that what the voters said and all the polling data and the newspapers would do stories about this because people were captivated by this because they didn't quite understand how is this blind guy who doesn't have nearly the money and the resources that his opponents do on the Republican side, how is he doing so well on the polling data? What is going on that he is doing so great in this election?
So, an answer to your question, what ultimately happened was we won by a substantial margin, even though we got dramatically outspent. Because at the end of the day, what this all comes down to, doesn't matter if you're running for Supreme Court justice or Congress, it all comes down to one thing if you're able to connect with people and if they're able to connect with you. But most importantly, if people realize and see that you are doing this for the right reasons, and they see that you are doing this because you really care and that you have passion and that you have purpose for it, even if they disagree with your positions or even if they disagree with your politics, if they connect with you personally, there is a sable percentage of people that will give you an opportunity and give you a chance like they did with me.
“So obviously we've had some real challenges to the rule of law in the past few years, and the courts have often been a last line of defense in protecting that rule of law and protecting democracy writ large,” Beard said. He followed up by asking Bernstein, “How have you found the role of the court and the Michigan Supreme Court in particular evolving during this time? And how is its salient for voters, who maybe didn't think as much about the Supreme Court ,really risen now in 2022 as we're facing these challenges?”
Bernstein replied:
Many have argued, and many have said, that the road to the White House will go directly through the Michigan Supreme Court. So, you're probably asking why is the road to the White House, which many have said, going directly through the Michigan Supreme Court?
The reason that the court is so fundamental in this conversation, again without taking any position whatsoever, is because it is the Michigan Supreme Court that will ultimately decide how the election is going to be run. So what is, for all intents and purpose a presidential election. A presidential election is 50 state elections. Who is it that decides how an election's going to be run? Well, the last word on how an election is going to be run is decided by the state Supreme Court … the state Supreme Court will decide what is and what is not constitutional as it pertains to election protocols, policies and procedures.
Bernstein cited a recent example where the Wisconsin state Supreme Court ultimately determined that the use of drop boxes is unconstitutional, emphasizing the power of the body and what is at stake. He emphasized that state supreme courts are critical, because whether it is Michigan, Maine, or California, the supreme court of each state makes the absolute final decision as it pertains to the most personal, intimate issues that are facing people in their state.
Lastly, the trio discussed a decision by the state Supreme Court in Michigan last week, which happened after Republican officials in the state blocked two different ballot measures from appearing on the November ballot—one that would enshrine the right to an abortion into the state constitution, and another that would protect and expand voting rights. This decision was appealed by abortion rights organizations to the courts and ultimately came before the Michigan state Supreme Court. The court ruled 5-2 to certify an abortion rights initiative, kicking the decision to voters on the November ballot and letting them decide whether or not abortion rights will continue to be protected in Michigan.
As Bernstein put it, the decisions on these issues can have a serious ripple effect, not just in the state, but potentially across the country:
These are the kind of issues the court's going to have to get into. It isn't just limited to the question of abortion, it's also the question as it pertains to what impact does this have on assisted pregnancies? What impact does this have on in vitro fertilization? What impact does this have on cerebral palsy research? What impact does this have on Parkinson's research? And one of the things that the court's going to have to get into, and it's so deeply personal, but this is now going to be the purview of the Supreme Court, is what ultimately happens if you have a miscarriage? Is that going to require a police investigation?
”That's how serious and significant this is … If there's one thing that I say over and over and over again, it’s [this:] whether you're talking about reproductive rights, whether you're talking about voting rights, whether you're talking about the environment, whatever you're talking about … at the end of the day, the Supreme Court is going to be the absolute last word and final decider,” Bernstein emphasized.
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