The measure of a truly great judge must reach head and shoulders above his environments, above the folly and flattery of friends, the threats and vengeance of enemies. He must compass all the forces that move a people, not for an hour or a day or a year, but for decades, and if need be for centuries.
Ohio Law Bulletin, 1902
Dear Gov. Pence:
Fortunately, I did not apply to be the next justice on the Indiana Supreme Court. I am still trying to become a decent trial judge. The endeavor of judging is oftentimes misunderstood by lawyers and laypeople alike. On the one hand, it promises the sparkle of jurisprudential principles and praiseworthy eloquence. On the other hand, it can sometimes seem like watching a very bad reality TV show. What is often overlooked is the grand balance that judges must strike as they apply law to facts, interpret statutes and contracts, or just decide who is more believable.
The ancient Greek philosopher Socrates said a judge’s job is “to hear courteously, to answer wisely, to consider soberly, and to decide impartially.” (Too bad the judge at Socrates’ trial did not read that. He condemned him to death.) The way to judge is the way human minds discover: curious, diligent, sensitive, practical, deliberate, and with common sense. Knowledge of the law is crucial, but limited without the balance of all the necessary qualities.
There is now a great opportunity to pick our next Supreme Court justice. But our problem is that we have to replace the irreplaceable Justice Brent Dickson. It is not enough to say that he and his service are important, historical, wise, or even brilliant, all of which are undisputable. Rather, it is more fitting to find that as the era of Justice Dickson closes, we lose important links between precedent and vision, diligence and discretion, experience and wonder. Just consider:
• Justice Dickson has served more years on the Indiana Supreme Court (over 30) than anyone except Isaac Blackford (and he started when Indiana became a state almost 200 years ago!).
• Justice Dickson has served with 12 other justices, four of whom came and went during his service on the court. (He started with Justices Richard Givan, Roger DeBruler, Alfred Pivarnik and a young Chief Justice Randall Shepard.)
• Justice Dickson has written almost 800 opinions, among the most prolific writers of modern jurisdiction (just writing this makes me weary).
• Chief Justice Loretta Rush recently cited Justice Dickson for bringing “clarity and certainty to nearly every facet of the law.” His significant opinions include the famous Boehm v. Town of St. John (1996), which began a fairer calculation of property taxes; Collins v. Day (1994), which distinguished Indiana’s Equal Privilege Clause from federal equal protection analysis and provided workers’ compensation to farmworkers; Sears Roebuck and Co. v. Manuilov (2001), which determined Indiana’s own expert witness standard apart from Daubert; and Berry v. Crawford (2013), which defined separation of powers involving legislative walkouts.
• Justice Dickson founded the Sagamore Inn of Court, which has influenced a generation of attorneys regarding civility, character and competence.
• Justice Dickson and his wife, Jan, are founders and promoters of the Judicial Family Institute, which provides support and guidance for the unique questions and issues that sometimes face the families of judges.
• Justice Dickson’s work and advocacy have been a key part of the formation of resources for low-income residents and unrepresented Hoosiers.
• Justice Dickson is an accomplished leader, teacher and colleague.
• Have we ever known anyone who stepped down as chief justice so that he could devote his remaining time on the bench to doing the best legal work he can?
As Chief Justice Rush noted, “Justice Dickson has shaped the heart of Indiana law for years to come.” Knowledge of the law is crucial, but knowledge of people is just as valuable. Justice Dickson knows both very well.
So Gov. Pence, as the process develops worthy candidates for consideration, some may think about how many African-Americans have served (two), or women (two), or trial judges (not enough). We will never have another Justice Dickson, so that cannot be the standard. But the best bottom line may be “Who most wants to be like Justice Dickson?” Finding the person with the strongest aspiration to answer that question best may be the best we can get.
Good luck, governor. And thank you for all you do for Indiana judges.•
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 are those of the author.