Indiana’s new chief justice will preside over a Supreme Court facing a transition that could test the stability and civility that have been its hallmarks for more than two decades.
Brent E. Dickson’s ascension to chief justice from acting chief was affirmed May 15 by the Judicial Nominating Commission. Dickson, a 26-year justice, replaces Randall Shepard, whose 25-year term as chief justice had been the nation’s longest.
The change in leadership accompanies the pending retirement of one, and perhaps two, longtime justices and unprecedented change in the court’s makeup.
Mark Massa was appointed in March to replace Shepard. Two years prior, Steven David was named to the court to replace 14-year justice Theodore Boehm. Justice Frank Sullivan Jr., who’s been on the court nearly 19 years, announced he will retire this summer. The court’s remaining veteran, Justice Robert D. Rucker, indicated he’s undecided whether he will run for retention in November after 13 years on the Supreme Court.
Rucker joined David and Massa in endorsing Dickson to serve as chief justice. But Rucker also hinted at his uncertainty about staying on the bench in his comments to the commission.
“With upheaval in our ranks … maybe more upheaval to come,” Rucker said, Dickson “has been that steady hand, that visionary, if you will, who has done a magnificent job.”
Dickson will face mandatory retirement when he turns 75 in July 2016, before his five-year term as chief expires. He said after his selection that he has made no decision whether he will retire before then.
Should Rucker step aside, David would be the senior justice when Dickson retires.
Judicial appointment expert Charles Geyh, associate dean for research and John F. Kimberling Professor of Law at Indiana University Maurer School of Law, said Dickson’s leadership will be critical.
“I think that this is a somewhat precarious time in the history of the state Supreme Court in the limited sense that Chief Justice Shepard had a long and stable tenure,” Geyh said.
Shepard left the court in good health and one of the most respected judiciaries in the country, Geyh said, and he expects Dickson to maintain a steady course.
Dickson said as much during his appearance before the Judicial Nominating Commission.
He credited Shepard for nurturing a civil atmosphere on the court and said he wished to continue that tone and court programs that Shepard championed and developed during his tenure as chief.
“I’d like to keep things moving as they have been,” Dickson said after his selection. “Our employees needed to know civility was going to reign.” He said he hadn’t planned to run, but a growing number of voices persuaded him.
Dickson has written and spoken often on the importance of fostering civility among attorneys, and when he spoke to the commission, it was the trait he said was most important in a chief.
“No. 1 is collegial behavior and judicial temperament,” he said. He stressed the importance of justices being agreeable when they disagree, and he said the justices maintained an open-door environment in which colleagues might encourage one another to moderate the tone of a particularly harsh draft.
Scathing dissents can “have a subtle effect on how (justices) interact with each other,” he said.
Geyh said that with four or fewer years as chief, Dickson is unlikely to leave an imprint on the court that can be measured against Shepard’s quarter-century.
“In the larger scheme of things, I think this is a sensible pick that isn’t going to create a ripple effect,” Geyh said. “The wait-and-see moment is who comes on the court next.
“The complexion of the court will change in some fairly significant ways, and that will affect how they do business,” he said. One of those ways could be a shift from the court’s traditionally apolitical approach to doing business.
The transition, Geyh said, “is coming as more and more courts are under siege from political detractors. … Efforts to politicize the judiciary are more common. Judge Shepard had steadfastly resisted those.”
Geyh said that if a justice or future justice politicizes the court, it could be counterproductive and damage the court’s esteem, which maintained a relatively low profile under Shepard.
“The court hasn’t been in the crosshairs of political fights that have gotten (state supreme courts) in trouble in other states,” Geyh said. With another chief justice selection no more than four years off, those who will be frontrunners are those who build comity on the bench and inspire confidence in their fellow justices, he added.
“In many ways the judges who may well be interested in a chief justice position, if they are, the irony or the paradox is they can’t do the kinds of things politicians do to get a successful outcome for themselves,” he said.
The court could be composed of five Republican appointees if Rucker retires. He and Sullivan are the only Democratic appointees, and Gov. Mitch Daniels will appoint his third justice to fill Sullivan’s vacancy, and possibly a fourth if Rucker leaves.
But Geyh said one-party dominance is not necessarily a worrisome scenario. “To me, it depends on whether the participants in the process remain committed to the goals of a merit-selection system.
“Daniels has shown himself to be someone who is committed to that system,” he said. “It’s always an open question as to whether the next governor will see it the same way.”
During the chief justice selection process, Dickson’s colleagues offered their views of the qualities of a chief, and each praised Dickson’s leadership as he chaired the nominating commission as acting chief.
“It’s very well-deserved and not something that I would think of as a gold watch or a lifetime achievement award,” Massa said in recommending Dickson, who he called a consensus builder and thought leader.
Massa and others said Dickson also possessed the “small ‘P’ political skills” needed to be the public face of the court and represent the judiciary in the Legislature.
“As far as the immediate decision, what I would look for if I were you,” David told the commission, then leaned and stared with a sly smile across the table at Dickson. He called Dickson “the right fit.”
Rucker said the chief justice also acts as a chairman of the board of the state’s judiciary, and Dickson was ideally suited to do so.
Daniels praised Dickson’s selection.
“To me, the commission made the right and natural choice. Brent Dickson is universally respected and has earned the complete trust of his colleagues and lawyers statewide. Any other selection would have been a surprise.”•