Seventy-two percent of applicants for the current vacancy on the Indiana Supreme Court were women. After a first round of interviews, 60 percent of semifinalists were women. The number fell to 33 percent – just one woman – by the time Gov. Mitch Daniels got the final three names.
The numbers are disappointing to court watchers who thought odds were stronger this time around that two or potentially three women might be among the finalists from whom Daniels will appoint the next justice.
Indiana is one of just three states, including Idaho and Iowa, that have no women on their supreme courts. Only one woman, Myra Selby, has ever served on Indiana’s Supreme Court. She left the bench in 1999 after four years.
Charles Geyh, a professor and judicial appointment expert at Indiana University Maurer School of Law, said the issue represents at the very least a perception problem for the judiciary and the selection process, though he said the finalists selected each were imminently qualified. He said gender “absolutely” should be a consideration for the high court vacancy.
“This isn’t about affirmative action, and I recognize the Supreme Court of Indiana is not like a legislature. Nonetheless, it does serve the people of Indiana, and by the way, half of them are women,” Geyh said.
“It’s hard to defend unless you can look at the Indiana bar and say women are so deficient that they don’t deserve a spot on the Supreme Court, and I don’t think anyone is that out of their mind,” he said. “To me, when you’re talking about a Supreme Court that’s serving the entirety of the state, you ought to be mindful, I think, of the perceptions you create.”
Diversity was a topic most semifinalists before the Indiana Judicial Nominating Commission were asked to discuss during their interviews on Aug. 8. Many of them said gender and racial diversity were important, but they said diversity of background, professional and life experience also were important.
If Daniels does select a woman this time, it will be Tippecanoe Superior Judge Loretta Rush. Other finalists the commission selected are Hamilton Superior Judge Steven Nation and Taft Stettinius & Hollister LLP partner Geoffrey Slaughter.
“I think each one of them is well qualified and brings different strengths to the table,” said Joel Schumm, professor at Indiana University Robert H. McKinney School of Law who watched and commented on the commission’s interviews.
Schumm said Rush’s semifinalist interview with the commission stood out to him as the day’s best.
“She was confident but not arrogant,” he said. But Schumm said Slaughter is among the best appellate attorneys in the state, and Nation probably has the broadest base of experience of the finalists.
Schumm said he heard from a number of women who were upset that only one woman had advanced for the governor’s consideration. Schumm said he understood the sentiment, but he also understood the commission’s choices.
“It was an open and fair process, and what I hope doesn’t happen is fewer people or fewer women in general apply in the future,” he said. “That said, each one of the three finalists is well qualified and it’s hard to say how the governor makes a decision of who’s best qualified. … There’s not a consistent yardstick for that.”
The commission’s decision was marked by a rare departure from its customary unanimous public votes in favor of a slate of three finalists. Commission member Jim McDonald, a Terre Haute private practice attorney, voted against the three finalists but declined to explain what prompted him to do so.
McDonald acknowledged the unusual circumstance, saying only, “I felt strongly enough then that I was going to vote my conscience.”
Daniels will have 60 days from the official receipt of a letter notifying him of the commission’s decision to appoint a justice to replace Frank Sullivan Jr., who retired from the court to join the faculty at I.U. McKinney School of Law. It’s unclear what role gender may play in Daniels’ decision, or whether he may move faster since Sullivan has departed.
“The governor will approach this vacancy the way he has the others,” Daniels’ deputy press secretary Jake Oakman said in a statement. “He will select the best qualified person and make the selection when he’s ready.”
Geyh said the fact that just one woman was among the finalists “kind of forces the governor’s hand a little bit. If he was going to choose a woman, he has only one choice.”
Melissa Cohen of Cohen & Sawochka P.C. in Merrillville is president of the Indiana Women Lawyers Association, a nonpartisan organization that represents about 100 attorneys, mostly in northwest Indiana. She said it’s a concern to the group that Indiana is just one of three states without female representation on the state’s court of last resort.
Cohen said all the finalists are qualified candidates, but “we thought there were enough qualified women candidates that more than one could be considered for the final three.”
“The Women Lawyers Association thinks that there are many qualified women in the state of Indiana who would be excellent Supreme Court justices,” Cohen said. “There were more women applicants than men. We’re grateful that there is at least one woman in the final three.”
Cohen said the IWLA’s mission is to support the advancement of women lawyers and judges. The group also conducts legal seminars and mentors women lawyers and law students.
“We do think that a woman Supreme Court justice will favorably change the dynamics of the Supreme Court and enrich the measure of justice,” she said.•