The Attorney General as Governor's appointee?
The recent primary election brought to the fore one of the weaknesses of Michigan's current political system. The Attorney General and the Secretary of State are two statewide offices which are elected by the voters in Michigan. This means that it can happen (and often does) that the Attorney General is of a different political party from the Governor, and that he sometimes finds himself arguing in favor of a political position that he in fact opposes.
For many years, from 1962 to 1998, Frank Kelley was the Attorney General, a Democrat who served during the tenure of three different Republican governors (George Romney, William Milliken, and John Engler). Since 1999, the Attorney General has been Jennifer Granholm, serving during the last term of John Engler as Governor. She is the current Democratic candidate for Governor.
During the Democratic primary, one of the charges leveled against Granholm by her primary opponents, most notably David Bonior, was that she had betrayed the Democratic party and her own principles by arguing court cases in favor of positions advocated by the conservative Engler. The most prominent of these was filing an amicus brief before the U.S. Supreme Court in unsuccessful support of a Nebraska ban on "partial-birth abortion". She defended her position by stating, in essence, that the Governor is her client, and that she is required by law to argue the position of her client, regardless of her personal feelings about the matter. While that is true for the most part, she did misstate matters a little: the Attorney General is the attorney for the State, not the Governor himself. Indeed, the Governor has a legal counsel of his own, whose job is to advise him in his individual capacity on whatever issues may arise.
The AG's own web site states matters more accurately:
"The Attorney General is the lawyer for the State of Michigan. When public legal matters arise, she renders opinions on matters of law and provides legal counsel for the Legislature and for each officer, department, board and commission of state government. She provides legal representation in court actions and assists in the conduct of official hearings held by state agencies."
The criticism lobbed against Granholm by her fellow Democrats was ill-deserved. (Granholm has many substantial weaknesses from which her opponents may choose; this was not one of them.) The AG does serve as counsel for the state. She is required to argue the state's position, and it is indeed the Governor, as Chief Executive Officer of the state, who sets the state's policies and guides its direction.
Although she is the officer who advocates for the state's position on litigated cases, this does not mean that she is adheres to the Governor's position on all policy issues. She has been known to take positions that substantially differ from those of the Governor on issues such as diversion of Great Lakes groundwater resources and abortion. She was quoted during the primary campaign as follows:
"One of the reasons I'm running for governor is that it's been a frustrating experience representing an administration you disagree with on many, many issues. But that is the constitutional and statutory obligation."
The Governor's office stated at the time:
"It's her role to represent state government in lawsuits," Engler spokeswoman Susan Shafer said. "For better or worse, we have her and she has us." (AP report)
Consider the PR ramifications if an attorney for a prominent company spoke about his role, or if a company officer spoke of his company's lawyer, using language such as this.
The system of electing the Attorney General should be discarded in favor of a constitutional amendment providing for direct appointment to that office by the Governor, in my opinion. The Governor should be permitted to directly make his choice of the attorney whose job it will be to represent the state and its agencies, just as the board of directors or the CEO of a corporation has the right to decide who will represent it in court and in negotiations. The AG should not have to be put in the position of having to argue in favor of policies that she does not favor, or having to potentially embarrass the Governor by refusing to do so. The Governor should not be put in the position of having a half-hearted advocate arguing his policy positions on behalf of the people of the state.
Note: The National Association of Attorneys General discloses that Attorneys General are elected in 43 states and appointed by governors in five states as well as in the commonwealths and possessions. A couple of states have odd hybrid systems.
7:09:59 PM 
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