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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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