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High court opening process wasn't public 25 years ago

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The nearly three-dozen attorneys who’ve applied to become the state’s newest justice sets a record for the past 25 years, but it falls short of the number who’d applied for an Indiana Supreme Court post a quarter century ago.

Chief Justice Randall T. Shepard was part of an applicant pool for the state’s highest court in 1985 to succeed former Justice Donald Hunter who’d hit the mandatory retirement age. At the time, Indiana’s statutory scheme hadn’t yet changed to make the applicant roster and interview process public – everything was confidential until the late '80s and early '90s.

Court public information officer Kathryn Dolan said 36 applied a quarter century ago, which is two more applicants than the 34 who’ve applied for the post being vacated in September once Justice Theodore R. Boehm retires from the court. The chief justice affirmed that number based on what he knew at the time, but added the process was very different then.

“The list was never public, so you never really knew all who’d applied,” the chief justice said today. “But because of a massive amount of reporter time, the Star uncovered the names of about two-thirds of the applicants by calling up and asking them. I certainly knew several of them, but it was all closed.”

Instead of the current process put into place in 1991 when a new fifth district was added to the Indiana Court of Appeals, the Judicial Nominating Commission at the time held all of the interviews during three days and announced the finalists at the end – rather than narrowing the list down to semi-finalists and bringing those individuals back for second interviews before choosing finalists to send to the governor for consideration.

Thinking back on his interview, Chief Justice Shepard said he didn’t recall specifically how long his interview lasted but he knew that he was in the room longer than his allotted time. He remembers then-Chief Justice Richard Givan asking him questions about how he managed his trial court work and something about philosopher and statesman Edmund Burke, but he doesn’t recall how he answered.

“I know I spent a fair amount of time getting ready, because the application then was as it is now – a fairly substantial process in itself,” Chief Justice Shepard said. “I remember spending a lot of time thinking about what I might be asked and what I might say.”

After what he now describes as a likely grueling process for the commission members at the time, the chief justice emerged as one of three finalists for the opening – attorneys Patrick Woods Harrison in Columbus and Raymond Thomas Green, now in Fort Wayne, were the other two finalists.

Green couldn’t be reached at his office today, but Harrison said he had no regrets about how the process turned out. After the nominating commission interview, he met twice with then-Gov. Robert Orr and answered questions about experience and general philosophies on issues such as utilities. Within a few weeks, the announcement came about the final choice.

“Honestly, I wrote the governor after Justice Shepard was appointed and said, ‘I hate to admit this, but you made the right choice,’” Harrison said. “I can say so many great things about Randy and just can’t think of anything bad, and that’s unusual for someone who’s been on the court for so long.”

Chief Justice Shepard says that he was the oldest of the three on that list, and he later learned that the commission members considering applicants had expressed “a fair amount of sentiment” to find someone young for the court.

Now serving as chief justice and chair of the Judicial Nominating Commission, he finds himself on the flip side of that interview process. Interviews begin at 9 a.m. Tuesday and run through the entire day, and start again at the same time Wednesday. The commission will select semi-finalists following those interviews, and will bring those individuals back for a second round of questions on July 30. Members are expected to decide that day on three finalists, whose names will be sent to Gov. Mitch Daniels for final consideration.

“I still believe this two-stage process has been a valuable change,” Chief Justice Shepard said. “For one, it gives commission members a second look at candidates before making a final choice. It also gives us a chance to call references and the seven of us have been able to divide up the task of calling those references. It’s just a better decision-making process.”

The chief justice laughs about the possibility of a different result, had the process been any different or been spread out in stages as it is now.

“I have no basis to know, but there was a list of substantially qualified people who applied,” he said. “I am lucky to have made it.”
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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