Monday, August 13, 2012
Vacancy #2 on Supreme Court 2012 - Final Thoughts on the Second Round
Commentary by Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law
I’ve heard from a number of people who have expressed a variety of reactions to Wednesday’s interviews and list of finalists. The following are a few thoughts on the second round of interviews.
It’s All About the Interview
Again, the interview is crucial. As explained in this post after the first round, the interview “provides a good sense of whether someone is seen as ‘judicial’ (to use John Trimble’s phrase from the ISBA Demystifying seminar in June). Can you picture the applicant asking questions at oral arguments, giving speeches, and representing the Court in discussions with other branches of government, the bench, the bar, and the public?" During the second round, the questions were tougher and deeper. Some candidates did better than others in providing answers that were thoughtful, clear, and concise. If I struggled to find a way to summarize the answer, chances are at least some members of the Commission were struggling to understand it as well. After the morning interviews, I thought Geoff Slaughter had the best interview, and by the end of the day I thought Judge Rush had the best of the day. Others had solid interviews and very strong paper applications, but the applicant pool is incredibly competitive at this stage.
Some of the Commission members’ questions suggested a focus on applicants’ experience with civil cases, especially complex ones. The recent retirements leave an especially deep void in this area. The finalists each have extensive experience in practice and/or the bench in the civil arena, including a wide variety of different types of issues. Each also has been in practice well over two decades.
Does the Interview Schedule Advantage Some Applicants?
Indiana’s selection process is more open and transparent than most states, and this arguably comes with some costs. For example, an applicant who interviews later in the day has the advantage of being able to review summaries of earlier interviews,or hearing reports from others who have been present in the interview room. In writing these summaries through six rounds of interviews over the past two years, I’ve generally thought any benefit was negligible because the questions varied or required application of specific information for which knowing the question would help only slightly. This round seemed a little different; knowing the questions in advance could have been an advantage.
Three examples are considered below. Although there is seldom one right answer to some of the types of questions asked, some responses are problematic. An answer that displays a fundamental misunderstanding or ignorance of the legal principles involved could prove disqualifying, and responses that show opposition to the questioner’s viewpoint may weigh against applicants in a highly competitive field. Of course no sample or model answer will later be provided by the Commission, so the thoughts below are purely my own.
- Dr. Streeter asked nearly every applicant how they would deal with an ambiguous statute and encouraged them to provide an example from their experience. I suspect he was looking for some expression of judicial restraint, but I do not know. One way to respond would have been to provide an example where the Court resolved an issue in a manner acceptable to individuals of any ideological or jurisprudential perspective. As the day drew on, I hoped someone would bring up Sales v. State (Ind. 2000), where the Indiana Supreme Court interpreted the legislature’s unusual use of the word “percent” in the drunk driving statutes to allow prosecutions to proceed, after a trial court and the Court of Appeals had ruled otherwise. The unanimous, well-crafted, and clever opinion from Justice Boehm included: “Although a claim of resort to common sense is often a mask for lack of principled rules of decision, in this case we think it appropriate. Under the trial court’s calculations and rationale, a person would violate Indiana Code § 9-30-5-1(a)(2) only if his or her ‘alcohol blood ratio’ were 210%, which would long since have produced not an impaired driver but a corpse, indeed one perhaps needing no embalming."
- Nearly every applicant was asked (usually by Chief Justice Dickson) whether they had a preference for the federal or Indiana summary judgment standard. This question was probably not of great interest to the lay members of the Commission but certainly was of interest to the lawyer members, each of whom is probably much happier with the Indiana standard. This post from Arend Abel on the Indianapolis Litigation Blog explains the difference: The Indiana Supreme Court in Jarboe held in 1994 that "Under Indiana's standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence. ... In this respect," the Jarboe decision explained, "Indiana's summary judgment procedure abruptly diverges from federal summary judgment practice. Under the federal rule, the party seeking summary judgment is not required to negate an opponent's claim." The Court then held "Indiana does not adhere to Celotex and the federal methodology."
- Finally, each applicant was also asked about their approach to interpreting constitutional provisions, often with words like “organic” or “living, breathing document” offered as an option. I suspect that Chief Justice Dickson and the lay members were looking for a more originalist approach here. Consider, for example, one of Justice Dickson’s many state constitutional law opinions, Richardson v. State (1999): Questions arising under the Indiana Constitution are to be resolved by "examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." In construing the Constitution, "`a court should look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy.'" Because the "intent of the framers of the Constitution is paramount in determining the meaning of a provision," this Court will consider "the purpose which induced the adoption, ...in order that we may ascertain what the particular constitutional provision was designed to prevent[.]"
Advance notice of difficult questions offers applicants an opportunity to contemplate and organize a response, and nothing precludes research or discussion with others. To avoid any perception of unfair advantage in the future, the Commission could consider instructing applicants they are not to discuss or read anything about the earlier interviews.
The Non-Unanimous Commission Vote
Unfortunately, I missed the 7:30 p.m. vote on the finalists. I’ve seen previous ones. One member makes a motion that X, Y, and Z be finalists, someone seconds it, and everyone says “aye” or at least it seems they do. There is no public expression of disagreement, even if the Commission had gone through hours of supposedly heated discussions as with the Shepard vacancy earlier this year. This round, though, Niki Kelly of the Fort Wayne Journal Gazette stuck around for the vote and reported, “One commission member, Terre Haute attorney James McDonald, voted against the choice of finalists but wouldn’t comment further on why."
Did Mr. McDonald disagree with all or some of the finalists—and whom would he have selected instead? It would be interesting to know the specific vote, by Commission member, for this and previous vacancies. But there is a potential downside to providing individual votes and rationales. Imagine if the Governor selects a justice who squeaked by on a 4-3 Commission vote, and those three Commission member's explanations of their votes were particularly negative. Or imagine if the Chief Justice, who will serve with the new justice for many years to come, is on the record as having voted against him or her. That might be a little awkward, at least at first.
The Commission’s practice has been to submit the three names and evaluations in a single, seemingly unanimously approved, letter from the Chief Justice. The statute arguably envisions more than a single letter from the Chief Justice. Subsection (a) states: “The judicial nominating commission shall submit to the governor, from those names the commission considers for a vacancy, the names of only the three (3) most highly qualified candidates. In determining which candidates are most highly qualified each commission member shall evaluate each candidate, in writing . . . .” Subsection (f) provides “The commission shall submit with the list of three (3) nominees to the governor its written evaluation of each nominee, based on the considerations set forth in subsection (a). The list of names submitted to the governor and the written evaluation of each nominee shall be publicly disclosed by the commission.”
Will the Commission submit a single letter this round, or will Mr. McDonald write separately to explain his disagreement?
Whom Will the Governor Appoint?
In his statements appointing Justice David and Justice Massa, Governor Daniels cited both their previous experience and their commitment to judicial restraint. With Justice David he remarked, “I heard from Steve David the clearest expression of commitment to proper restraint in jurisprudence, and to deep respect for the boundaries of judicial decision-making. He will be a judge who interprets rather than invents our laws.” (The Barnes decision would seem to be a disappointment on this score, and, ironically, was identified by Judge Vorhees, the only Democrat in the group of ten semi-finalists, as a decision that “overreached” and could have been decided on narrower grounds.) I assume the Governor will maintain this focus on judicial restraint when he interviews the three finalists. Judge Rush and Mr. Slaughter’s answers during the second round of interviews may resonate on this point.
Posted by Marcia Oddi on August 13, 2012 08:58 AM
Posted to Vacancy #2 on Supreme Court 2012