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Sunday, March 04, 2012

Vacancy on Supreme Court 2012 - Woman on the Indiana Supreme Court – or not?

That is the topic of this excellent, fleetingly freely available, analysis piece by Lesley Weidenbener, managing editor of the Franklin College Statehouse File. From the story:

Gov. Mitch Daniels is pondering his second appointment to the Indiana Supreme Court, a choice that is important because it gives the Republican an opportunity to extend his legacy beyond this final year of his second term and influence civil and criminal policies in Indiana for decades.

For Daniels – who must chose among three attorneys chosen by the Indiana Judicial Nominating Commission – the decision is about merit and judicial philosophy. But some are watching to see if Daniels will appoint a woman to replace retiring Chief Justice Randall Shepard. Of the three finalists, only one – Indiana Judicial Center Executive Director Jane Seigel – is a woman. * * *

As Daniels considers the candidates for the state’s current opening, he said that gender will be one factor in his decision but it certainly won’t be the key.

“I would love nothing more – and this is in many contexts for that matter – than to appoint women. Try to do it when I can. But it’s a tiebreaker,” the governor said. “We’ve got to have the best qualified judge, the best temperament. I want to see someone who will respect the boundaries and the separation of power and boundaries of judicial decision making.”

But Sally Kenney, executive director of the Newcomb College Institute at Tulane University, argued picking a woman ought to be the priority for Daniels. Kenney, who specializes in gender in courts, said Indiana’s lack of diversity on the state’s high court is akin to workplace discrimination.

Women make up more than 50 percent of Indiana’s population, roughly half of all the law school grads, about 30 percent of practicing attorneys in the state, and nearly one in five of the judges in county circuit and superior courts. To fail to have the state’s highest court reflect that diversity is a problem, Kenney said.

But the most important reason for Daniels to pick a woman is “that people will look at the court and see it as illegitimate,” Kenney said. She compared the situation to an all-white jury judging a black defendant. “Even if the jury is trying to be fair, it may not be justice,” she said.

“It’s not just about justice being done, but justice seen to be done,” Kenney said. “It’s very difficult to argue for the legitimacy of the court if it doesn’t represent the majority of the population.”

The editorial board at The Journal Gazette in Fort Wayne recently made a similar argument when it said the “best man for the Indiana Supreme Court is a woman.” The editorial said the nominating commission should not have sent Daniels any candidate that was not qualified for the job.

But, the editorial said, “only one is female. It should make the governor’s work very easy.”

Still, similar arguments were made nearly two years ago when Daniels appointed Justice Steven David to the court. Then, the governor was also choosing from among one female and two male finalists.

And at that time, Daniels also said that gender would have been a tie-breaker. But ultimately, he said, there was no tie because David was the most qualified candidate.

Since then, other states have been figuring it out. Across the nation, roughly one third of all state justices are women, a statistic that has been increasing. Maybe soon, Indiana will figure it out soon too.

The FWJG editorial referenced in the story was published last Sunday, Feb. 26th, and headed "Easy pick for state’s top court." An earlier ILB post, from Feb. 21st, was headed "Where are the Women Justices?"

As I wrote then, the criteria the Governor sets out are subjective. Each of the three candidates sent to the Governor in 2010 was superbly qualified, two equally matched, in many eyes, trial court judges (one of whom was a woman) and one private appellate practitioner who had earlier worked for the Supreme Court.

The same is true of the three names the Governor formally received last week. Two have backgrounds that appear evenly matched, albeit with very different life experiences. Neither of the two has been a judge, but both currently work in state government, one for the Governor, one for the Supreme Court. Both have local government experience, one as a deputy prosecutor, the other as counsel for the local governments. One of the two is a woman. The third candidate this year has been a trial judge and currently is a judge on the Court of Appeals, a position to which he was appointed four years ago by Governor Daniels.

Before the disaster and tragedy that struck southern Indiana Friday, many people thought the Governor would name a new Supreme Court justice the first part of this coming week...

Posted by Marcia Oddi on March 4, 2012 03:36 PM
Posted to Vacancy on Supreme Court 2012