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Justice selection process wasn't always public

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The names of three people have been sent to Gov. Mitch Daniels for consideration to be the next Indiana Supreme Court justice.

One thing is already clear: Those who’ve made it this far have found a place in the Hoosier record books as they join a distinguished list of attorneys who through the years have been finalists for an opening on the state’s highest court.

The current trio of finalists is now part of a 21-person group that’s gotten past the Indiana Judicial Nominating Commission in those selections during the past three decades. Some have moved to the appellate bench in other capacities while others have tried their luck for other openings, and some have not tried again to secure a Supreme Court spot. But whatever the makeup of that roster, those names mark historic changes in how the overall process has operated through the years.

Indiana Supreme Court The number of people applying for the Indiana Supreme Court fell just short of the record set 25 years ago, when Chief Justice Randall T. Shepard was first named to the bench. He’s just one of the many attorneys and judges who’ve been final contenders for the court. (IBJ Photo/Elizabeth Brockett)

“No one ever expects to get to the final three, but you certainly hope you’ll be,” said Indianapolis attorney Mary Beth Ramey, a founding partner at Ramey & Hailey who was a finalist in 1999 when Justice Robert D. Rucker was named to the bench. “I knew people had to be eliminated, and I worked really hard as one of those candidates facing elimination to move forward. You hold your breath and hope.”

That is likely the common theme through the years among all who’ve faced the Nominating Commission and moved on to be put on the roster for the governor’s consideration.

Though 34 initially applied this year to replace retiring Justice Theodore R. Boehm – and that was a record for the past 25 years – the number fell short of the 36 who applied in 1985. Chief Justice Randall T. Shepard was part of that applicant pool then seeking to succeed former Justice Donald Hunter, who’d hit the mandatory retirement age. At that time, the man who’s now been the court’s administrative leader for more than two decades was a Vanderburgh Superior judge who’d been on the bench for about five years.

Reflecting on that process, the chief justice said it was much different at that time. Indiana’s statutory scheme hadn’t yet changed to make the applicant roster and interview process public – everything was confidential until the late 1980s and early 1990s. Click here for a list of finalists since 1985.

“The list was never public, so you never really knew all who’d applied,” the chief justice said. “But because of a massive amount of reporter time, The [Indianapolis] Star uncovered the names of about two-thirds of the applicants by calling up and asking them. I certainly knew several of them, but it was all closed.”

Instead of the current process put into place in the early ’90s when a fifth district was added to the Indiana Court of Appeals, the Judicial Nominating Commission at the time conducted all of the interviews during three days and announced the finalists at the end. Now the process involves narrowing the list to semi-finalists and bringing those individuals back for second interviews before choosing three finalists to send to the governor for consideration.

Randall Shepard Shepard, 1985

Thinking back on his interview, Chief Justice Shepard said he didn’t recall specifically how long his interview lasted, but he knew that he was in the room longer than his allotted time. He remembers then-Chief Justice Richard Givan asking him questions about how he managed his trial court work and something about philosopher and statesman Edmund Burke, but he doesn’t recall how he answered.

“I know I spent a fair amount of time getting ready, because the application then was as it is now – a fairly substantial process in itself,” Chief Justice Shepard said. “I remember spending a lot of time thinking about what I might be asked and what I might say.”

After what he now describes as a grueling process for the commission members at the time, the chief justice emerged as one of three finalists for the opening – the other two finalists were attorney Patrick Woods Harrison in Columbus and then-Bartholomew Circuit Judge Raymond Thomas Green, who’s now practicing in Fort Wayne.

Harrison said he had no regrets about how the process turned out. After the Nominating Commission interview, he met twice with then-Gov. Robert Orr and answered questions about experience and general philosophies about issues such as utilities. Within a few weeks, the announcement came about the final choice.

“Honestly, I wrote the governor after Justice Shepard was appointed and said, ‘I hate to admit this, but you made the right choice,’” Harrison said. “I can say so many great things about Randy and just can’t think of anything bad, and that’s unusual for someone who’s been on the court for so long.”

Chief Justice Shepard said he was the oldest of the three on that list, and he later learned that the commission members considering applicants had expressed “a fair amount of sentiment” to find someone young for the court.

Now serving as chair of the Judicial Nominating Commission, he finds himself on the flip side of that interview process for the sixth time since taking the chief justice role.

“I still believe this two-stage process has been a valuable change,” Chief Justice Shepard said. “For one, it gives commission members a second look at candidates before making a final choice. It also gives us a chance to call references, and the seven of us have been able to divide up the task of calling those references. It’s just a better decision-making process.”

Other attorneys and judges who’ve made it to the finalist round, but weren’t chosen for a Supreme Court post, have made similar comments and say their faith in the process didn’t waver despite not being chosen.

“It was a very interesting process to go through,” said Ramey, who pointed out she hadn’t personally gone through or observed that process before. “One of the things that really struck me was that you feel very honored that you’d made it to the final three, and that’s almost an honor in itself. But then you’re really at the governor’s mercy from there.”

Another finalist was Indiana Court of Appeals Judge James S. Kirsch, who at the time he was a finalist in 1993 served on the Marion Superior bench. The commission chose him along with Judge Betty Barteau and attorney Frank Sullivan, the latter who ultimately received the governor’s selection for a seat vacated by Justice Jon Krahulik.

That was his second of three times Judge Kirsch had faced the nominating commission as a finalist, and the third time he was appointed to the state’s second highest appellate court.

“For me, the third time was the charm, but I was tremendously honored to be included on all three panels,” he said. “My primary memory is one of gratitude to the commission members who gave so very freely of their time, treated all of the candidates with the utmost courtesy and respect, and worked very diligently to carry out their charge. My prior experience gave me a better understanding of the process, made it a bit less daunting, and set the stage for my appointment to the Court of Appeals several months later.”

Before being tapped for the Indiana Court of Appeals in 1998, then-St. Joseph Superior Judge Sanford M. Brook found himself making the finalist roster three times for the state appellate courts during the 1990s – twice for the intermediate court and once for the Supreme Court opening along with Justice Boehm.

“I have been disappointed, but the integrity of the process has not diminished,” he told Indiana Lawyer at the time he was vying for a justice seat. “I, each time, have been honored to be one of the final three.”

That’s a sentiment echoed by Chief Justice Shepard, who praises the other two finalists he was up against a quarter century ago as well as everyone who’s come before the commission in the many years since. Whether it’s narrowing the initial applicant list to semi-finalists or whittling that number down to three, the decision-making isn’t easy for the commission members because so many qualified individuals must be passed over.

He recognizes that it might have even been a possibility for himself back in 1985, even though the process was so different at that time. The chief justice laughs about the possibility of a different result, had the process been any different or been spread out in stages as it is now.

“I have no basis to know, but there was a list of substantially qualified people who applied,” he said. “I am lucky to have made it.”•

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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