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Wednesday, March 22, 2017

Vacancy On Supreme Court 2017 - Thoughts on the First Round

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

For those who have asked, yes, the questions were more difficult yesterday and today than in earlier first rounds. There were no standard opening question(s), and many of the questions were the type of questions (or actual questions) asked in the second round in the past. As Commission members fairly noted, this is a second or third interview for many of the applicants, most of whom have interviewed in the past. I jokingly asked on a break if the second round this year would be a cage match.

The questions were certainly fair and the Commission (and citizens and lawyers of the state) should expect applicants to discuss a variety of legal issues in a cogent and hopefully thoughtful way. This is not an easy process, but we should expect a lot before someone receives a lifetime job (retention elections have never been close in Indiana) on the state’s highest court.

Today’s deliberations should have been easier than the deliberations will be after the second round in April. The Commission was not limited in the number of applicants it could advance. In recent selection processes, about half advanced, although a much smaller percentage advanced when 34 applicants applied in 2010. Today’s vote of eleven names (or 55%) is a bit higher than the past.

I am not surprised with the list of eleven. I created a list of nine names earlier this afternoon that I thought would (that’s “would” not necessarily “should”) advance. All nine did indeed. The interview surely matters, but a less-than-stellar interview is not necessarily disqualifying, as today’s list shows. Some applicants come to the interview with an especially strong application or support on the Commission. Although today’s public vote was unanimous (after Mr. Feighner made a motion seconded by Mr. Yakym), applicants certainly had varying degrees of support among the members, as the four-plus hours of deliberation would suggest.

For what it’s worth, as I have written in the past, trial judges excelled in the interviews — Judges Foley, Carmichael, Goff, and Hostetler were especially strong. Although practice or familiarity with the process surely helps, first-time applicant Judge Foley made most of his shots, some from three-point range (to continue with the basketball reference from earlier today).

These and other applicants with strong interviews generally answered questions directly and succinctly while demonstrating a nuanced and thoughtful understanding of the role of an Indiana Supreme Court justice. One could envision them sitting at the conference table discussing cases, asking questions in an oral argument, chairing an important meeting, or speaking to a group of lawyers or schoolchildren.

Those who struggled with parts of the interview may have not adequately prepared or may have over-prepared, to the point of offering non-responsive and seemingly canned answers to questions. The Commission’s questions expected familiarity with the work of the Indiana Supreme Court, including its opinions and administrative work. Many answers demonstrated a sufficient understanding, while others sometimes went into territory likely to alienate at least some members of the Commission, like a discussion of a recent 3-2 opinion.

All that said, I hope those reading this will both congratulate those who advanced and thank those who did not. I remain a big proponent of Indiana’s merit selection system, which only works when individuals agree to step forward and apply as part of a public and something challenging process.

Posted by Marcia Oddi on March 22, 2017 07:11 PM
Posted to Vacancy on Supreme Court - 2017