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Indiana Judges Association: Protect 'We (All) the People'

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IJA-Dreyer-DavidIn 1947, 16 German judges were tried and convicted for crimes against humanity, that is, enforcing Nazi racial purity laws supporting the Holocaust. In 2010, three Iowa judges were attacked and removed for striking down a same-sex marriage ban, that is, what some supporters call a marriage purity law. All these judges were guilty of doing their job. So what’s the difference? Well, the Nazi judges were following what they felt was required by the German government, and to some extent the German people, regardless of the consequences. But the Iowa judges were guilty of doing what they felt was required by the law, regardless of the consequences.

Afterwards, Iowa law professor Todd Pettys told the Wall Street Journal, “The notion of throwing someone out on the basis of one ruling is entirely in tension with all other considerations that went into coming up with Iowa’s policy [of keeping electoral politics out of the judiciary] . . . Given this, you’d think that the standard for rejecting a judge would be pretty extreme, like misconduct or a pattern of blatantly disregarding the rule of law. . . There’s just no misbehavior [here] of any kind.” So has electoral politics seeped into the American judiciary?

In 1849, a South Bend state trial judge named Elisha Egbert freed former slave David Powell and his family who were tracked down by their Kentucky “owners.” He interpreted a 1793 law to allow only damages for runaway slaves, not possession. If Judge Egbert was facing slave-owning voters, would he have been thrown out? A year later, Congress passed the Federal Fugitive Slave Act, and Northern judges everywhere followed the law to return former slaves to former masters. What would Judge Egbert have done under the new law? Presumably, he would have done his job – interpreted the law and followed it. If he was still in office.

Unfortunately for all Americans, a new Brennan Center for Justice report entitled “The New Politics of Judicial Elections” identifies a “grave and growing” challenge to impartial consideration of judges and the emergence of several “super spenders,” like the U.S. Chamber of Commerce. But is this new? Under accusatory euphemisms like “activist” or “legislating,” there is a discouraging record of judicial challenges based more upon a partisan single interest scorecard than the rule of law:

In 1996, Tennessee Justice Penny White was rejected for just concurring in a unanimous decision reversing a death penalty conviction – three California justices were earlier removed because of death penalty opposition.

In Kansas, Chief Justice Lawton R. Nuss and three colleagues recently survived strong opposition (abortion).

In Colorado, Chief Justice Mary Mullarky retired this year rather than face an organization called “Clear The Bench.” (taxes, redistricting, eminent domain)

In Illinois, Chief Justice Thomas Kilbride vigorously fought and survived opposition based not upon any ruling, but seeking a more partisan court for upcoming political redistricting. Even local cynics conceded any new judge might still be independent. (“It’s conceivable that [the court] would do what it ought to do.” – Illinois official Dawn Clark Netsch)

“The business of the law is to make sense of the confusion of what we call human life, “said poet Archibald MacLeish, himself a lawyer, “to reduce it to order but at the same time to give it possibility, scope, even dignity.” This could be a standard by which to judge a judge – not whether we agree on a single case, or to bully an expedient political point. Bob Vander Plaats, the Iowa opposition leader, declared, “It’s ‘we the people,’ not ‘we the courts.’” But according to the Founding Fathers, he is wrong. The plain words of the Constitution give power to the people – and deliberately balance that power with the rule of law. So it is more accurate to say, “We all the people (protected by the law all the time),” not “we the (majority of) people (only in one election on one issue).”

What can be done? Nothing. In a democracy, no law should stop these “super spenders” and single-issue thinkers. But judges who forfeit their independence for short-term considerations may face long-term consequences. Just ask the German judges. Overall, there has been no diminishing effect on the courage and dedication of our judges to do what is right rather than do what polls show. But there will always be good judges who will be removed, who will get thrown out for the wrong reason, or no reason. Regardless, the Republic stays strong because judges stay strong. Just ask the Powell family.•
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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 the author’s

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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