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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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