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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues