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Appellate court openings spark discussion about experience

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Whether someone has worn a black robe before joining an appellate court is a discussion that often surfaces whenever one of those judiciary posts opens in either the state or federal system.

Senators have raised that question when discussing the pending U.S. Supreme Court nomination of Solicitor General Elena Kagan, who doesn’t have any prior judicial experience. She would be the 112th justice to join the nation’s highest bench.

That same issue is also one that Indiana Supreme Court knows well, as three of the five sitting members – Justices Theodore R. Boehm, Brent E. Dickson, and Frank Sullivan Jr. – didn’t come from the bench.
 

Makeup main Justice Theodore R. Boehm, left, was appointed after working as coporate counsel at Baker & Daniels. Justice Brent E. Dickson, right, was appointed after serving as general practice lawyer. (IL Photo/ Perry Reichanadter)

On the flip side, Chief Justice Randall Shepard served on the Vanderburgh Superior bench while Justice Robert D. Rucker came from the Indiana Court of Appeals after practicing in Lake County.

That court makeup could change in coming months, though, with the upcoming retirement of Justice Boehm. Whether his successor will shift the judicial experience makeup of the court remains to be seen, but fewer than half of the total applicants – 16 out of 34 – come from either the trial or appellate bench. Both the Judicial Nominating Commission and Gov. Mitch Daniels will be responsible for ultimately choosing who will become the state’s next justice.

Despite those openings and whether that judicial experience question has any merit, most in the legal community agree that it doesn’t much matter one way or another whether someone has a judicial background. Most say that having a diverse membership from all kinds of backgrounds makes a court stronger, and that any judicial experience is just one of many factors that must be considered.

“I think that one of the judiciary’s great benefits is having multi-membered courts, as it affords a variety of views based on that prior experience and different exposures to the fields of law,” Chief Justice Shepard said. “Prior experience is extremely helpful, but not obligatory. I do think we’ve seen great value in the way in which our court’s recently been formulated, and I think it would be a mistake to have all of one or all of the other.”

Justices Boehm and Dickson took some time recently to meet with Indiana Lawyer and discuss that issue generally and how their own non-judicial experiences impact the court and overall legal community.

Justice Sullivan declined to participate in this story or any follow-up interviews on the topic of prior judicial experience. His experience before his 1993 court appointment included government service as Indiana state budget director, and work at Barnes & Thornburg in Indianapolis.

Before joining the Indiana Supreme Court, most of Justice Boehm’s experience was in corporate law after previous private practice experience. He worked at Indianapolis firm Baker & Daniels through most of the 1980s; was general counsel at General Electric starting in 1988, before a move to Eli Lilly in 1991; and then he rejoined Baker & Daniels in 1995.

Justice Dickson came from private practice, where he worked as a general practice lawyer for 17 years in Lafayette before joining the court in 1986.

Sitting in the conference room where they meet weekly to ponder court business and pending cases that help shape Indiana law, Justices Boehm and Dickson talked about their views on the merits of that argument and how it plays out both at the state and federal levels. They also talked abut how it could be potential fodder for expanding the Indiana Supreme Court at some point in the future.

“Honestly, I think that assumption about needing that experience is quite wrong,” Justice Boehm said. “We benefit from having people who aren’t all the same and have been judges before.”

With three current justices not having that prior experience, Justice Boehm said that he sees the state court as having a deeper background that is able to better understand and take into consideration all aspects of an issue that a homogenous makeup might not allow.

Justice Dickson said someone who has spent his or her entire career on the bench has “missed out” on those other perspectives, and that must be balanced on an appellate court with non-judges.

“I see (having) courtroom lawyers being very important because those are the cases that are appealed and those are invaluable experiences,” Justice Dickson said. “They’ve been in the trenches and know how a decision from this court is going to impact them specifically.”

While both justices said a member’s past experience doesn’t matter much when the court is considering and deciding on cases, it might sometimes shape discussion about a particular appeal between the five members. The pair said the court often turns to a particular member’s past experience to get their take on a particular issue at the start of a discussion, and sometimes it might even impact how a case is assigned.

For example, the court might think about whether someone’s expertise in an area of law would add anything new, or if it would be better to have someone else write it. Justices also consider how important that might be when considering cases such as judicial disciplinary actions, and whether it could be beneficial to have the decision penned by one of the members who didn’t come from the bench previously.

“It might govern the beginning of a case, maybe, but certainly not the outcome,” Justice Dickson said about the overall impact. “We have all been in courts and don’t have to sit on the bench to have an appreciation for the litigants and the legal issue.”

Regardless of someone’s background and whether that person sat previously on the bench, Justices Boehm and Dickson said everyone will have a gap of inexperience when they join the appellate bench.

Neither Justice Boehm nor Dickson expressed any feedback about whether the governor should next appoint a judge or not, but that it is be one of many factors he must consider in making that decision. Both did note that a need for greater overall diversity on the court could be used in the debate about whether to expand the number of Supreme Court justices within the state – lawmakers could bump the number up to eight, if they chose to.

Aside from the experience aspect, though, both justices said it might sometimes be easier to find new appellate judges or justices from the lower court ranks simply because of the government salaries. That might limit potential applicants to those already familiar with the money and lifestyle requirements, they said.

Looking at his soon-retiring colleague, Justice Dickson smiled and said, “There are too few people like Justice Boehm willing to give back.”

Justice Boehm said that more than five justices might be a way to bring in even more diversity – from anything including gender, race, geography, and legal experience. That also increases the complexity of a court and potentially makes it more difficult to find agreement, they noted.

But regardless of the number of justices, one thing is clear: Indiana falls into the majority of what courts do across the country.

The National Center for State Courts reports that 46 of 53 courts – comprised of the 50 state supreme courts plus the separate criminal courts of last resorts in Oklahoma and Texas, and the District of Columbia Court of Appeals – include at least one member without prior judicial experience. Across the country, 19 sitting state chief justices didn’t have that experience, the NCSC reports.

For the SCOTUS, eight of the current justices served as federal appellate judges before joining that bench. Retiring Justice John Paul Stevens was not a judge beforehand, and now Kagan has been tapped to take his place – if confirmed she’d be first new justice in almost 40 years without any prior judicial experience. The Senate Judiciary Committee started Kagan’s confirmation hearings in late June, and Republican opposition expressed concern about the fact that she didn’t have any judicial experience.

“The public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to the impartial application of the law and the Constitution. With no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics,” said Sen. Jeff Sessions, R-Ala.

Other Republicans issued similar concerns and pointed out that most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.”

But those political arguments ignore a simple fact: The legal community doesn’t raise those same concerns. Also 40 of the 111 SCOTUS justices came the court without any prior judicial experience – half of them served in the 20th century and includes some of that court’s most distinguished alumni.

From within the legal community, Justice Boehm said that prior judicial experience is simply not what’s important about a court member and that many other factors are just as significant. He isn’t weighing in on the Kagan nomination, but said that his own clerking experience for former U.S. Chief Justice Earl Warren gives him a view into the federal judiciary that reinforces his belief.

“That is more of a public argument than one that attorneys make,” Justice Boehm said. “You’re going to have the same gripe, even if your court is one that has all prior judges. You have to have a mix of opinion and members who are equally experienced in all areas of the law that you might be considering. That’s what makes a court strong for either the state or federal bench.”•
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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