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.
“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 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.
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.”•