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Tuesday, June 08, 2010

Ind. Courts - "Who Should Pick Judges: People or Officials?"

Indiana Policy Review has just released this column by Andrea Neal. (The link may not work.) Some quotes:

Despite efforts to give Indiana voters more say on big issues – referenda over public spending being a notable example – there’s no such movement when it comes to judges of the state Supreme Court and Court of Appeals.

Indiana has enjoyed a competent judiciary thanks to: 1) A selection process that uses an appointed commission to narrow down applicants, and 2) has the governor pick from a pool of three finalists and gives the public the chance to throw out rascals every 10 years during “retention votes.” No judge has ever been thrown out that way, but somehow the process works.
The column notes that the "Missouri plan," upon which Indiana's judicial selection process is based, is undergoing some challenges in Missouri and elsewhere. (The ILB has had a number of entries on the Missouri plan issues. See also this May 26th entry at the St. Louis Post Dispatch website.) Neal's column concludes:
Several provisions in Indiana’s law make it unlikely our system could be hijacked by special interests. The seven-member Judicial Nominating Commission is chaired by Chief Justice Randall Shepard and, while it includes three lawyers elected by bar association members, it has three citizen members appointed by the governor. The process is transparent so it’s hard to rig. Applications are all made public and initial interviews are conducted in public.

The bar association likes Indiana’s system so much that it has called for its extension to the trial court level where voters still elect judges on partisan ballots. The argument can be made, however, that lawyers would then have too much say. Our dual system in place since 1972 – one level elected and the other appointive – is itself a check on judicial behavior. If lower court judges act politically they can be reined in on appeal.

Daniels declined to comment for this column in light of the pending appointment. He made his views known in 2009 in vetoing HB 1491, which would have replaced merit selection in St. Joseph County, one of two counties that does not elect trial judges, with elections. He said, “The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded . . . It has produced outstanding jurists and contains sufficient measures of public accountability.”

The same can be said of Indiana’s process for appellate and supreme court judges. It’s why Indiana should stick with the Missouri Plan even if Missouri decides not to.
ILB: The transparency of the Indiana process contrasts with that of some other states using "the Missouri plan," which do not open interviews to the public, etc. Here is what the recently posted notice for the upcoming vacancy in Justice Boehm's seat said on this point:
8. The Commission will conduct public interviews in Indianapolis on Tuesday, July 6 and Wednesday, July 7, 2010 after which the Commission will select a number of candidates as semi-finalists for second interviews scheduled for Friday, July 30, 2010. Upon the conclusion of the second round of interviews, the Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2. Candidates must be available on the interview dates, including evening hours.
Here is a quote from the Kansas City Star on the Missouri process via an Aug. 14, 2007 ILB entry:
The rhetoric keeps getting hotter when it comes to Missouri’s nonpartisan court plan.

State Senate Majority Leader Charlie Shields charged Monday that the Appellate Judicial Commission met in secret to pick the three finalists for the vacant Supreme Court seat “without giving the public notice of their meetings by date, time and place, all of which are required by the Sunshine Law.”

The St. Joseph Republican asked Attorney General Jay Nixon to investigate all seven members of the commission, which picks finalists for top court seats around the state. One member is state Supreme Court Chief Justice Laura Denvir Stith. The commission asserted recently that it did not have to abide by the Sunshine Law since it was governed by court rules. Those rules say the commission’s meetings are closed to the public.

Gov. Matt Blunt has demanded that the commission provide more information about the candidates who applied for the opening on the Supreme Court. The legal community has been critical of the governor and other Republicans who have attacked the state’s judiciary and its nonpartisan judicial selection process.

Posted by Marcia Oddi on June 8, 2010 01:20 PM
Posted to Indiana Courts | Vacancy on Supreme Ct