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Wednesday, December 21, 2011
Vacancy on Supreme Court 2012 - To Reapply or Not Reapply…?
As noted in this post, the Judicial Nominating Commission is now accepting applications for the vacancy created by Chief Justice Shepard’s impending retirement. The press release notes three days (February 8-10) for initial interviews and two days (February 22-23) for second round interviews. This suggests the Commission may be expecting a record number of applicants.
Upon the announcement of Chief Justice Shepard’s retirement, a reporter asked me if selecting his replacement would be a straightforward process with the same applicants from the 2010 Boehm vacancy simply reapplying. I responded no, that I anticipated many new applicants, which have since been discussed here and here. Although all of these individuals will not apply, other lawyers and judges and lawyers from around the state surely will. The focus of this post, however, is on re-applications.
Last summer 34 individuals submitted applications for the vacancy created by Justice Boehm’s retirement. Each was invited to a twenty-minute interview (over a two-day period) before the Commission. Of the 34 applicants, 25 received bad news within a couple of hours of the end of interviews; they were not one of the nine semi-finalists who would be invited for a second interview. During the second round of interviews, the nine were winnowed to three finalists (then-Judge Steve David, Judge Robyn Moberly, and Karl Mulvaney), whose names were submitted to the Governor.
So, how many of the 33 previous unsuccessful applicants will reapply? I expect many. After all, re-applying is easy. Although the application form is long and takes a great deal of time to prepare, previous applicants can easily update their applications with only a minimal investment of time and energy.
Second, most applicants report the process is a very pleasant one. The Commission members are well-prepared, respectful, and appear genuinely interested in learning more about the candidates. Many applicants are profiled by local or regional media, which is overwhelming positive press.
Third, although rejection is never pleasant, persistence has paid off in the past for members of the Court of Appeals, some of whom were unsuccessful one or more times before ultimately securing an appointment. Moreover, the Commission in 2012 will be very different from the one in 2010. Only three of the seven commission members from 2010 remain in 2012: the Chief Justice, Jim McDonald (the attorney member from the First District), and Fred McCashland (the lay member from the Second District). The two attorney members have been replaced by Bill Winningham (Second District) and John Ulmer (Third District). Of the lay members, Christine Keck (First District) has been replaced by Molly Kitchell, and the Governor must soon replace Mike Gavin (Third District), whose term expires at the end of the year.
Furthermore, although applicants may be primarily interested in a Supreme Court appointment, those from the Second District who are not successful will likely have at least one opportunity to appear again before the same Commission (sans the Chief Justice), which will interview applicants for the expected vacancy created by Judge Darden’s impending age-mandated retirement. Additionally, if Judge Bradford were to be appointed to the Supreme Court, an additional vacancy on the Court of Appeals would be created.
Do not look for 33 repeat applicants, however. Some applicants have surely experienced changes in their life and work situations that would make an appointment to the Supreme Court (or a round of interviewing) less appealing than it was in 2010. A couple years of additional age may change the decision for some as well. Although the mandatory retirement age of Supreme Court justices is 75, an ILB chart from last year demonstrated that most justices are appointed at a fairly young age. Indeed, then-Judge David was 53, the youngest of the three finalists.
Moreover, some applicants may not re-apply because they feel (whether they publicly discuss it or not) scorned, especially if they did not even advance to the second round in 2010.
Finally, publicity may not be viewed as positive for all applicants. The Supreme Court application process is appropriately a very open one, where applications are now posted online and interviews open to the public. The individual selected will play an integral role in determining the law of the state for decades. Other judicial selection processes, however, are not nearly so transparent.
For example, the applicant list for a federal magistrate vacancy is a closely held secret, and the interview process is closed with only the name of the person selected ever revealed publicly. Granted, the individual selected is chosen by and will work for the District Judges and have limited authority. Some suggest the magistrate selection process, which has generated very strong candidates, is essential to the willingness of some highly qualified applicants to apply.
The argument goes that some practicing lawyers do not want to risk offending partners at their firm or clients who may become concerned they are somehow not committed to their practice for the long-term. This may deter some applicants, but last year’s Supreme Court vacancy generated high quality applicants from a number of law firms, including Judy Woods then at Bose McKinney and now at Benesch, Geoff Slaughter at Taft, semifinalist Ellen Boshkoff of Baker & Daniels, and of course finalist Karl Mulvaney of Bingham McHale. I certainly hope individuals of their caliber are in the applicant pool in 2012.
Bottom line: expect several returning applicants and several new ones.
(Poll ends COB Friday, Dec. 23.)
Posted by Marcia Oddi on December 21, 2011 11:25 AM
Posted to Vacancy on Supreme Court 2012