Thursday, May 27, 2010

My Take on Indiana's Judicial Selection Process

This morning the Star editorialized about the retirement of Indiana Supreme Court Justice Theodore Boehm and Indiana's judicial selection process:
The coming retirement of Indiana Supreme Court Justice Theodore Boehm offers Gov. Mitch Daniels a rare opportunity to alter the political alignment of the court as well as its gender makeup.

The process for filling the seat, thankfully, is not overtly political. Hoosiers are spared the sort of partisan friction that too often characterizes U.S. Supreme Court confirmations and direct elections of appellate jurists in other states.

The Indiana high court has earned a reputation over the years both for moderation in its rulings and innovation in its administration, from expansion of the jury pool to
development of a pro bono system linking lawyers with indigent clients.


His replacement will be the first justice to be named by a Republican governor since 1986. Daniels must choose from three candidates to be put forward by a seven-member nominating committee. Chaired by Chief Justice Randall Shepard, the committee includes three gubernatorial appointees and three members elected by attorneys. After a minimum of two years' service, the new justice must stand for a yes-or-no retention vote in a general election. Approval means a 10-year term.

The Indiana State Bar Association likes the process so well it proposes extending it to the local trial court level statewide. The idea is a sound one, especially considering the example of Marion County, where elections are a charade that rewards party insiders. "We're a long way politically from being able to make that happen," says Bill Jonas of South Bend, the state Bar Association's immediate past president, noting that the state legislature tried to abolish merit selection in Lake and St. Joseph counties this year. Daniels vetoed the bill.
Click here to read the entire editorial.

From 1989 to 1993, I clerked for Judge Paul H. Buchanan, Jr. of the Indiana Court of Appeals. After he retired, I worked for six months for the Honorable Ezra Friedlander before going into private practice.

Judge Buchanan was originally elected to the Court of Appeals, running statewide. Interestingly Judge Buchanan was a major player in the adoption of Indiana's Missouri Plan system for selecting judges to the Court of Appeals and Supreme Court. He was extremely proud of his involvement and the quality of the state appellate judges, who were free from most political influence, that resulted from the change.

Let me explain briefly how the Indiana Missouri Plan works. All three branches of government appoint three individuals to a judicial screening committee. When an opening comes up in the appellate courts, attorneys eligible for the position are notified and given instructions on how to apply. The judicial screening committee screens those applications, coming up with a list of three finalists that is submitted to the Governor. The Governor appoints one of those finalists for the vacancy. That appointed judge will then face the electorate in a Yes-No retention vote within two years. If he/she is successful, the judge will only have to face voters in a retention vote every 10 years.

Having clerked at the Court, I too am impressed by the quality of Hoosier state appellate jurists. The system seems to be working better than the Presidential appointment/Senate confirmation system used in the federal system. Nonetheless, Indiana's Missouri Plan has problems.

First, while the judicial commission is charged with picking the three best candidates, the way it works in practice is that the Governor will let his favorite be known and that candidate inevitably ends up on the list of finalists considered by the Governor. For example, during Evan Bayh's term as Governor he appointed the late Jon Krahulik, his personal attorney, to the Court. While Krahulik proved to be an excellent judge, there was little in his resume that at the time warranted his being in the top three candidates selected by the screening commission.

A bigger problem though is the complete failure of the populist check on the system - the retention vote. Never in the history of Indiana's Missouri Plan has a judge come close to losing a retention vote. It is the national reaction of voters, when they don't know the judge (which is usually the case), to vote "Yes" on the retention vote.

I think if you surveyed the Indiana bar, most would agree that the state system for selecting judges works better than the federal. Virtually everyone though agrees that the partisan process for picking state court trial judges leaves too much potential for conflicts of interest and abuse. In that debate, Marion County's slating-dominated system, where party bosses handpick Marion County judges, is Exhibit A for a system that screams out for reform.

While the Star is right to praise the quality of our state appellate court judges, Indiana's Missouri Plan does need some tweaking. There is no reason it can't be better.

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