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Tuesday, January 31, 2012

Vacancy on the Supreme Court 2012 - A first look at the candidates' submissions

Again this year, Ind. University-Robert McKinney School of Law professor Joel Schumm has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court.

Visitors to the Supreme Court library on Monday afternoon were able to view the fifteen complete applications for the vacancy on the Indiana Supreme Court. Although the 34 applications in 2010 crowded the tables in the library, the applications this round required a single table. [see photo above] Media interest was diminished as well; a single reporter viewed an application from his region of the state.

I spent my hour focusing on information that will not be included when the application forms are posted to the Court’s website later this week: law school transcripts and letters of recommendation. Skimming the writing samples revealed no major surprises. Needless to say, some applicants have writing samples that look much more like Indiana Supreme Court opinions than others. The natural advantage here goes to Judge Bradford, who has written hundreds of Court of Appeals’ opinions, and high volume and experienced appellate practitioners, like Mr. Mulvaney and Ms. McMath.

Law school grades

As detailed in this post about the semifinalists for the 2010 vacancy, the Judicial Nominating Commission is instructed by statute to consider the applicants’ “[l]egal education, including law schools attended and education after law school, and any academic honors and awards achieved.” IC 33-27-3-2(a)(1). Question IV.B. on the application form directed candidates:“List below all law schools and post-J.D. programs attended. Attach a certified transcript from each to the original application and attach copies of each transcript to each application copy.” In addition, the form asked for "Degree and Class Rank." Although the forms will soon be posted to the Court’s website, the transcripts will not. The following table, however, is sorted by applicant GPA and includes class rank information if provided:

O’Bryan IU-Maurer 3.56 1st in class
Reeder IU-McKinney 3.28 Top 11%
Seigel IU-McKinney 3.14 ---
Trent IU-McKinney 3.11 Top 1/4
Massa IU-McKinney 3.03 123/211
Pagano NYLS 3.00 89/280
Moberly IU-McKinney 2.93 cum laude
McMath IU-Mauer 2.917 ---
Mulvaney IU-McKinney 2.89 81/207
Shively IU-McKinney 2.79 166
Bradford IU-McKinney 2.74 104/185
Altice UMKC 2.731 ---
Ayers IU-McKinney 2.69 ---
Granger IU-McKinney 2.657 ---
Schultz Yale non-traditional
grades H, P, CR

With two-thirds of the pool from Indiana University Robert H. McKinney School of Law, it seems quite possible the school could soon gain a three-Justice majority on Indiana Supreme Court. Justice Dickson (‘68) and Justice David (’82) are IU-McKinney alumni. Justice Sullivan graduated from Indiana-Maurer and Justice Rucker from Valparaiso.


The average age of the applicant pool for the 2010 vacancy was 53, coincidentally the age of then-Judge Steve David, who was ultimately appointed to fill the vacancy. This time around the average is again 53, with a range of 41 to 64.

Pagano 41
Granger 42
Trent 42
Schultz 46
Massa 50
McMath 50
Altice 51
Bradford 51
Reeder 54
Seigel 57
Shively 57
Moberly 58
Mulvaney 62
Ayers 64
O'Bryan 64

Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which remains 75, although the mandatory retirement age for trial court judges was removed last year.

Letters of Recommendation

The Commission collects and distributes letters of recommendation to all its members. Letters may continue to arrive later in the application process. For example, then-Judge David received several letters after he advanced to the semifinal round in 2010, including two letters from unsuccessful applicants for the position. The significance of letters is debatable. For example, the 2010 applicant with the most letters, many from prominent political figures, advanced to the second round but was not a finalist. This year the applicant with the most letters appears to be Judge Bradford, whose letters came from an impressive array of prominent Republican (and even some Democratic) lawyers and public officials including (apologies to anyone inadvertently omitted): Susan Brooks, Sen. David Long, Lee McNeely, Scott Newman, Bart Peterson, Melissa Proffitt Reese, Peter Rusthoven, John Trimble, and James Voyles—as well as two of his colleagues on the Indiana Court of Appeals: Judge James Kirsch and Judge Melissa May.

Perhaps most interesting was the overlap in some of the letters. Some trial court judges wrote at least three separate letters for different applicants. It is understandable that a judge or lawyer would agree to write letters for well-qualified applicants when asked, and the order in which one is asked may not track a recommender’s ordering of the very best among a highly qualified pool. Peter Rusthoven’s single letter recommending Judge Bradford, Mr. Massa, and Mr. Schultz (in alphabetical order) provided glowing individual assessments of each before concluding the trio “would be an exceptionally well-qualified panel of three to submit to the Governor for his final appointment of the next Justice of our Supreme Court.”

Posted by Marcia Oddi on January 31, 2012 11:27 AM
Posted to Vacancy on Supreme Court 2012