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Indiana Judges Association: Choose between the good and the good

David J. Dreyer
June 9, 2010
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Indiana Lawyer Commentary

Dear Gov. Daniels:

I am not applying for the Indiana Supreme Court to replace my friend Justice Ted Boehm. But I am writing to urge you to appoint a Notre Dame Law School alum. Why? Well, Notre Dame is the only Indiana law school without an Indiana Supreme Court justice. Although some football foes would prefer it that way, there is much to merit a Notre Dame appointee. After all, it is consistently the highest ranked law school in Indiana (#22 in 2010 U.S. News and World Report). More importantly, it has a history and mission that promotes the qualities any governor would want in a Supreme Court justice.

But first, an historical snapshot to see where our Indiana Supreme Court has been and not been:

• 1 female

• 2 African-Americans

• 102 white men, mostly from Indianapolis or central Indiana (Governor, as one white guy from Indianapolis to another, I am sure you would agree that this is not all it is cracked up to be)

• Most law school graduates: IU-Bloomington

• Justice Amos Wade Jackson was admitted to the bar in 1925 while still a senior at Hanover College

• Justice Silas Coffey’s law studies were interrupted by the Civil War, but he continued to lug Blackstone’s Commentaries to study along the way

• Justices George Henley and Isadore Levine (male) served about a month (1955) until someone could be found who really wanted the job

But among so many badly needed diverse demographics for this appointment, a Notre Dame grad should be among the highest. As an alumnus of Our Lady, I respectfully call your attention to her commitment to educate “a different kind of lawyer.” While I presume you always wish lawyers were a lot different than they are, this aspiration is not a maverick ideal. It seeks to “bridge the worlds of theory and practice, facilitating the interchange of information between the academy and the corridors of political and legal power.”

A judge from Notre Dame will always raise central questions about the “relationship between law and morality, the distribution of power between the state and other social institutions, and the importance of identifying universal norms of justice.” Notre Dame lawyers are taught that the law should be used for the common good over selfish interest. Accordingly, a Notre Dame Supreme Court justice would be someone who seeks to reconcile, engage, renew ideals, and search for ways to apply the law as a living balance between what is written and the conscience of the community.

In fact, this kind of judging endeavor is described by former Justice David Souter in his recent Harvard Law School commencement address: “… the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products of our aspirations to value liberty, as well as order, and fairness and equality …. And the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it ….”

What we need in Justice Boehm’s replacement is not just someone who is well educated, or from any particular demographic, but someone who can really see the values and meanings “between the good and the good” in those hard cases. As a trial judge, I often have cases in which both sides are “good” under legal and practical analyses – but the essence of judging is finding the intangible way that not only shows the right door, but how to open it as well.

In fact, maybe what we need to replace Ted Boehm is a person like Ted Boehm – not necessarily a white Indianapolis guy with a Harvard degree, but someone who has built a brilliant intellect by living a life of wonder, curiosity, adventure, and public service. As we all know, he not only ran large law firms and corporations, but he also raised four daughters, and led the thinking and dreaming behind the creation of the best civic sports model in the world. The work of the Indiana Sports Corp. has combined the best values of competition with community development and has shown what it means to find solutions “between the good and the good.”

Overall, we may not need an actual Notre Dame grad to replace Justice Boehm, but we do need someone with the qualities and character that Notre Dame and our other fine Indiana law schools all espouse and Justice Boehm embodies. We need someone whose thinking as a person fully informs their life as a lawyer. We need Supreme Court justices like we have now: who care, who listen, and who will still come in every day ready for work regardless of what the media or any other branch of government says about them. We need justices who are up to the constitutional challenge when, as Justice Souter says, “we cannot share every intellectual assumption that formed the minds of those who framed the charter, but can still address the constitutional uncertainties the way they must have envisioned, by relying on reason that respects the word the Framers wrote, by facing facts, and by seeking to understand their meaning for the living.”

And if that includes a Notre Dame law grad for the first time in Indiana history, all the better for the diversity of the court. Good luck.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed in this column are those of the author.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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