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Judicial selection process has no formula

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Selecting a new Indiana Supreme Court member is a transparent process until it reaches the governor, and then the action moves behind closed doors and the legal community is left holding its collective breath until learning who will be the state’s next justice.

No formulas exist, and the process is largely in the hands of the governor, allowing that person and those on his legal team the flexibility to do interviews in whatever way they might choose.

The most recent selection of Boone Circuit Judge Steven H. David was the first time Gov. Mitch Daniels had faced this kind of decision and it was the first appointment to the state’s high court in 11 years.

As a result, the governor didn’t have a script except to follow some guidance from his closest legal counsel as well as from those who’d been in that position before.
 

Moberly Robyn Moberly

“This stage is a creation of the governor and their counsel, and it’s in their purview to do whatever they’d like,” said Marion Superior Judge Robyn Moberly, who was one of the three finalists for the Supreme Court vacancy this time. “Overall, I can’t say enough about how excellent the whole process is, and I thought the governor’s office went to extraordinary lengths to decide who they thought would be the best person to fill the spot. The experience going through it is something I’ll remember very fondly and treasure for the rest of my career.”

On July 30, the Judicial Nominating Commission chose three finalists to forward to the governor for consideration – Judges David and Moberly, and Indianapolis attorney Karl L. Mulvaney at Bingham McHale. The legal community described all three as great choices, and members of the commission say they were glad that they didn’t have to narrow the list down from that trio.
 

Mulvaney Karl Mulvaney

Mulvaney said he received a call from the governor’s general counsel the morning of the announcement, letting him know he hadn’t been chosen. That “very professional call” told him about it being a close race and that the governor was appreciative that he’d put his name into the ring. Mulvaney said some believe the selection process should be reverted to elections, but he disagrees and finds this method to be fair and very well-done.

Praising the system like his fellow finalists, Judge David said both the commission and governor selection process were “rigorous, busy, thorough, and transparent.”

The governor’s general counsel David Pippen sat through every applicant’s interview before the Judicial Nominating Commission. It was Pippen’s first chance to witness a process he described as “fantastic.” He and his two assistants did an initial interview with the finalists, and about a week later – in early September – the finalists met individually with Daniels.

“I’d never met the governor before even in a circumstantial situation, and there was that high school feeling like you’re meeting a celebrity,” Judge David said about his meeting with Daniels. “Then, you realize it’s about a job interview and you calm down a bit.”

All three finalists described the governor interview as very conversational and laid back, and that the state leader appeared well-prepared: as though he’d read every piece of material on them. They discussed judicial philosophy and some of the same nominating commission topics such as their experience, each said.

One novel aspect of the recent process was a homework assignment given by the governor’s office asking each finalist to read an Indiana Supreme Court case and then write both a concurrence and dissent to that ruling. The case was Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), which was a personal injury appeal decided in May 2009. The court held that Indiana’s collateral source statute doesn’t bar evidence of discounted amounts to determine the reasonable value of medical services provided to plaintiffs in personal injury actions, and two justices issued a dissent on the case.

While the applicants were asked to write about it, the case didn’t come up during the discussions with the governor, or his general counsel and staff.

“That’s one thing I’ll never forget: being 53 years old and having a homework assignment from the governor,” Judge David said.


David Hamilton Hamilton

Pippen made the decision about the case writing assignment. He said it wasn’t a matter of getting the right answer and there wasn’t any litmus test, but rather he wanted to see how each articulated their legal points and wrote them into an opinion. Pippen declined to take ownership of this being the first time that writing test had been done, pointing to what 7th Circuit Judge David Hamilton had done when he was general counsel for then-Gov. Evan Bayh in 1990. At that time, the governor ultimately chose Jon D. Krahulik to succeed Justice Alfred Pivarnik.

Reflecting on his days before taking the bench, Judge Hamilton said he’d put together a reading packet for each finalist of eight to 10 cases – some from the U.S. Supreme Court and some from other states – and asked each person to read those and be prepared to discuss them at the interview.

“My role was to do the preliminary interviews, and in the first few times we did this for Court of Appeals and some trial court vacancies, I got a little frustrated by some very bland and generic answers,” Judge Hamilton said. “I didn’t feel like it was possible in those interviews to get a sense of how applicants thought about legal issues. I wanted to get past answers about not being familiar with a case, and get at the logic and reasoning.”

In later years when Gov. Frank O’Bannon had to fill a seat in 1999, his counsel at the time – Fred Biesecker who is now at Ice Miller – said no writing assignments were given. He echoed that there was no set formula, and no specific questions about cases or issues that came up at the time. The process mirrored what the governor had already done in naming some Court of Appeals judges, though the selection of Justice Robert Rucker was a little different in degree.

Biesecker said some lawyer organizations, individual attorneys, and collective groups lobbied for certain individuals and types of appointment, sharing their thoughts about who might make the best justice, he said.

“It was pretty informal overall, but that was a different time 11 years ago,” he said. “This one was much more real-time than back in 1999, when no one was blogging or videotaping it. You had media interest, but not to this same degree.”

In making his choice, Daniels said he found all three to be good choices but that Judge David was “an obvious choice” with rare aspects in military and juvenile justice experience.

While most in the legal community praised the selection, many also expressed a general frustration that Indiana will remain without a woman justice – one of only two states nationally lacking that gender diversity. The governor said he would have “liked nothing more” than to name a woman to the court, but that his decision was based on the merits. He’d said he might have used gender diversity as a “tie-breaker,” but this wasn’t a tie.

“My task was to find the best person on the merits, and I’m sure I did,” Daniels said. “Now the state is going to benefit from that for years to come.”

For this position that opens Sept. 30 once Justice Theodore R. Boehm retires, 34 judges and attorneys had initially applied. Nineteen were women, and the Judicial Nominating Commission chose four women and five men for second interviews before recommending the three finalists. Some say that commission, which has seven members and one female non-attorney, needs to more carefully look at gender diversity.

Indianapolis attorney Kerry Hyatt Blomquist, legal director of the Indiana Coalition Against Domestic Violence, said all three finalists were stellar choices and that she thinks Judge David is worthy of the appointment, but she thinks the governor missed an opportunity to add that gender diversity to the court.

“We encourage our women and children that women can do anything that men and boys can do, and more than half of our law school graduates are female, yet we have five Supreme Court justices that are men. Diversity has to be considered. This isn’t a commentary on Judge David but a commentary on our state overall. My biggest concern now is that women candidates will be dissuaded from seeking that brass ring in the future,” she said.

Marion Superior Judge Cynthia Ayers said that having a point of view from a female or minority judge could bring out an important aspect of the litigation that’s not been previously considered. That collection of dissimilar experiences should be part of the decision-making equation and is vital to the justice system, she said.

Morgan Superior Judge Jane Spencer Craney, who represents Indiana on the governing board of the National Association of Women Judges, said she’s disappointed in general but not in the pick.

“I’m confident that a woman will be named – again,” she said, referring to the first and only female on the court in the 1990s, Myra Selby. “I have nothing but praise for him (Judge David), but also hope that Judge Moberly applies again because I think she is qualified. But you can’t sacrifice all the other qualities of someone just because of gender.”•

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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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