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Friday, July 30, 2010

Ind. Courts - Report on the first 3 interviews of Supreme Court semi-finalists

This is IU-Indy Law Prof. Joel Schumm's report on the first three of the nine interviews for the Supreme Court - check here for the photos and links for group 1.

David, Steven H. - Judge, Boone Circuit Court

Consistent with the tradition at oral argument at the Court, Judge David asked at the beginning of the interview if he could reserve five minutes. The Chief Justice said, to laughter, “no.”

Judge David described his finest professional accomplishment initially as passing the bar. He was the first person in his family to attend college and participated in ROTC. Later, though, he was elected to the bench and cited his work there as his biggest accomplishment. He noted the “awesome responsibility” that comes with being a trial judge, and cited Martin Luther King words, “What are you doing for others?,” as a guiding goal.

He was a bit reluctant in citing improvements to the judiciary. He said we have a “good thing” in the judiciary and other branches of government; Indiana is a “good place to be.” He then noted two ways to improve the judiciary: (1) make it easier for those people entering the courthouse, and (2) make the judiciary better for those who work in the courthouse (lawyers, judges, staff). Specifically he cited, bringing JTAC to “successful completion,” becoming involved in pro bono, and promoting additional CLE. He stressed professional and civility (framed in plaques) as top priorities in his courtroom, which he would want to continue as a justice. He suggested Indiana could experiment more with cameras in the courtroom and spoke approvingly of the appellate court’s webcast of oral arguments and roadshows. Courts should be “open” and “transparent” to enhance the public’s perception of the work of the Court.

Also provoking laughter, Judge David described the nine semi-finalists as being like nine birds in a nest, and the commission members were flying over them with one worm that all of the birds really want.

When asked what different perspective he would bring to the Court, Jude David cited his military experience (ability to work with people from all levels, knowledge of the federal rules of evidence) and his work as corporation counsel for six years. He can work well with others but also compete, be a leader, and stand his ground when necessary.

Ms. Keck asks to what extent “political, social, and economic” concerns should factor into a decision. Judge David thought the three should be separated. He noted the social considerations may be a factor in some cases but not others. When considering to appoint pauper counsel, Judge David noted the “community is served better” sometimes with deviating a bit from hard and fast rules. As to political considerations, Judge David does not “blog” or “Facebook”; his role as a judge is to make decisions without regard to political considerations.

Mr. McCashland asked Judge David’s role of parenting. Specifically, he asked (to laughter) at what age a child should get a cellphone, and Judge David responded when a parent says the child can have a phone. His “Judge David’s Rule for Parents” spark discussion and grew out of his role as a parent. Parenting is tough and trying to be a child’s best friend can be a big mistake.

In closing, Judge David said he respected the process but asked (with laughter) that the decision not be published if he is “number nine.”

Fisher, Thomas M. - Solicitor General, Indiana Attorney General's Office

Mr. Fisher cited his three U.S. Supreme Court arguments as his biggest professional accomplishments, briefly mentioning (1) Hammon (Confrontation Clause) and (2) voter ID, which he litigated from beginning to end. His biggest accomplishment, though, was Edwards v. State, which involved mental competency to stand trial and the right to represent oneself. The Court of Appeals and Supreme Court ruled in Mr. Edwards’ favor (under existing law on the absolute right to represent oneself), and Mr. Fisher noted the difficulty of getting the U.S. Supreme Court to take a case and “scoured” the country for cases to demonstrate there was a conflict. He not only persuaded the Court to hear the case but ultimately prevailed to the surprise of many. Mr. Gavin asked what the vote was, and Mr. Fisher said he thought 7-2 (“we didn’t get Scalia”). He noted Justice Scalia’s expression changed from one of aggression to “resignation” during the argument, which was a good sign.

As to improvements to the judiciary, Mr. Fisher cited electronic filing similar to federal courts. He also noted financing of state court operations and the operation of clerk’s offices, observing some of the issues had been considered in the Kernan-Shepard report.

He then returned to somewhat unfocused discussion of Edwards and some other cases in largely lawyering/technical language that may have confused not only lay members but also lawyer members who may not know the ins and outs of Melendez-Diaz.

Returning to the question, Mr. Fisher suggested the Court might consider the way it deals with transfer petitions. Specifically, unlike the U.S. Supreme Court, merits briefs are generally not allowed. Not all cases warrant further briefing, but some do and amicus briefing could be particularly helpful in the merits stage. (As a frequent appellate practitioner, I agree this is a very good suggestion.)

Mr. Feighner asked about the “core values” of the jury system, but Mr. Fisher’s answer was not particularly clear (yes, juries determine the facts). When asked about how we summon jurors, Mr. Fisher explained he was very pleased when the system was broadened beyond voter lists to include more people.

Ms. Keck asked about an ethical dilemma from practice and how it was resolved. “Oh boy” began the answer, and Mr. Fisher paused while noting a concern with disclosing client confidences and not providing a specific example.

Mr. Trimble asked about Mr. Fisher’s approach to statutory interpretation. Mr. Fisher is a primarily a “textualist,” although the text sometimes does not answer always everything. Statutes must be taken as written at the time. In response to Mr. Gavin’s follow up, Mr. Fisher noted that Court are to “follow the law” and not make it up. When Mr. McDonald asked about “absurd results,” Mr. Fisher noted a danger of relying on that as a basis for a decision.

Although Mr. Fisher is widely regarded as an excellent oral advocate, his answers today were somewhat less direct than one might expect.

Emkes, Cynthia S. - Judge, Johnson Superior Court 2

Judge Emkes’ finest contribution has been her work on death penalty cases, which has been “very satisfying.” She has participated in conferences to help judges who have their first death penalty case.

Judge Emkes noted the norm when she took the bench has changed in light of the tough economy. Programs must be more cost effective and long-term. She thinks problem-solving courts (drug court and re-entry courts) are cost-effective but limited to the criminal realm. She noted 20 states have problem-solving courts in the civil realm, such as “business courts,” which Indiana should consider. She noted the importance of considering recidivism in sentencing, and the judiciary needs to embrace “best evidence practices.” She thinks some judges do not always consider alternatives to prison for low-risk offenders. This is a bit surprising in light of Judge Emkes’ very lengthy sentences for some first-time white-collar offenders.

Mr. Gavin asked Judge Emkes about her 42 cases that were reviewed by a higher court, noting 1/3 were reversed and many involved inappropriately long sentences. In response to what can be done to reduce sentencing disparities, Judge Emkes noted the difficulty in uniformity. She said she “does not know how to tackle it.” The aggravating and mitigating factors in the statute are good ones. She wished she could make a suggestion but could not.

Mr. Trimble asked how to address a conflict in Court of Appeals’ decisions, and Judge Emkes responded to “make the best decision based on the law and facts” and explain the rationale thoroughly.

In response to the Chief Justice’s question about judicial ethics, Judge Emkes noted the difficulty surrounding raising money for campaigns.

Posted by Marcia Oddi on July 30, 2010 10:28 AM
Posted to Vacancy on Supreme Ct