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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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