Wednesday justice applicants offer varied experience

February 17, 2016

Nine of 29 applicants to replace Chief Justice Brent Dickson were interviewed Wednesday in the first of three days of public interview sessions by the Indiana Judicial Nominating Commission.

Here are highlights from Wednesday afternoon’s interviews:
Judge Thomas J. Felts, Allen Circuit Court, Fort Wayne
Felts said the mentorship of a judge early in his career taught him lessons that he now tries to impart to young attorneys and judges, and he would continue to be of service if he were appointed to the Supreme Court. He also stressed his connections in the Legislature as an asset he would bring to the court.

“I’m on the board of almost every statewide legal organization there is,” Felts said, adding he was “someone who can come in and judges and attorneys around the state will recognize me as a leader.” Felts said he didn’t consider his experience as a trial court judge a negative, noting Chief Justice Loretta Rush and Justice Steven David share a similar background.

Felts said he believed lawyers would step up to fill the pro bono needs of unrepresented litigants, but noted there may be a time in the distant future when the court may have to take steps to encourage more volunteer legal assistance. “You never say never,” he said.

Peter J. Rusthoven, partner, Barnes & Thornburg LLP, Indianapolis
Rusthoven was asked whether his extensive high-profile experience in federal court and in the administration of President Ronald Reagan might make appointment to the Supreme Court less of an achievement.

“I don’t view this as being stuck at the state level, I view this as being where I want to be,” Rusthoven said. “Working at the state level on this court would be more rewarding for me.” He also said his work managing practice groups and working on the confirmation of former U.S. Attorney Ed Meeks gave him administrative experience useful on the court. He also said it’s important for the court to have practicing attorneys who have a sense of the real-world implications of rulings.

Rusthoven also praised the jurisprudence of the late Justice Antonin Scalia and his embrace of originalism. “The fairness that counts is what the people who wrote the statutes who represent the people think is fair, and what the people who wrote the Constitution think is fair,” he said. “He was a fabulous man and it’s a great loss.”

Judge Vicki L. Carmichael, Clark Circuit Court 4, New Albany
Carmichael until recently oversaw the busiest court in the state based on weighted caseload, Chief Justice Loretta Rush noted, and Carmichael said the courts have a role to play in examining the allocation of resources, from public defender services to possibly sharing magistrates and judicial officers on a regional basis.

As a former chief public defender in Clark County, she had administrative skills she would bring to the court and would hope to most emulate former Chief Justice Randall Shepard, she said. “His ability to work with other people, his ability to work with the Legislature and the executive branch shows some remarkable skill.”

Carmichael also said she would focus on the needs of children and families. “The guardian ad litem/CASA program is very near and dear to my heart,” she said. “That’s an area where the Supreme Court and the Legislature showed great compassion and great oversight” and expanded resources.

David E. Cook, Indiana Alcohol & Tobacco Commission chairman, Indianapolis
Cook, the oldest applicant at age 69, said he expected to be involved when asked where he saw himself in 10 years. He said he would bring a perspective shaped by long experience in administrative law but also past work in immigration law and on behalf of indigent clients. Nevertheless, Cook would face mandatory retirement at 75 if appointed to the Supreme Court.

“I understand longevity is a legitimate factor and for a variety of different reasons,” Cook said. “I see myself being involved in the legal profession for as long as I possibly can be.” When asked why he wants to be appointed to the court, he said it represented his best opportunity for continued public service, which he prefers. “I think that I have just evolved to a point where I can look at my own resume and say I think I can make a straight-faced application for this position.” Commissioner Lee Christie, however, noted someone he’d spoken to about Cook called him the best trial lawyer he’d seen.

Cook noted the increase in staff he oversaw when he headed the Marion County Public Defender Agency. He said that was an example of persuading policy makers to meet the needs even though it was not popular. He said he would a statewide public defender system is worthy of consideration.

Curtis E. Shirley, solo practitioner, Indianapolis
Shirley made a clear appeal for the needs of unrepresented litigants in stressing his background in legal aid. “It is staggering, the need, and what’s happening right now, this is not a dripping faucet, this is Niagara Falls.” He said of the 250,000 civil cases filed annually in trial courts, 50,000 of them have no attorney on either side. And among the more than 18,000 licensed attorneys in Indiana, “most of them do not want to do the kinds of cases poor people are involved in.”

 A past president of the Indianapolis Legal Aid Society, Shirley said the organization under his watch expanded its funding base and reached out to corporate attorneys who got involved in these cases. He said the state should provide a pool of lawyers for unrepresented litigants in civil matters.

Asked his view of judicial restraint, Shirley said he doesn’t view it favorably in state courts. He cited the example of cases dismissed on summary judgment on statute of limitations grounds without reaching the merits. He also said the late Justice Antonin Scalia “was not a good example” based on the tone of his arguments and opinions. “There’s no reason for how his dissents were written,” Shirley said, and he argued that Scalia’s view of judicial restraint also helped lead to “an administrative state” where federal agencies are writing rules with the force of law faster than they can be reviewed.

Mark A. Lienhoop, Newby Lewis Kaminski & Jones LLP, LaPorte
Linehoop won praise for what one commission member called an encyclopedic grasp of case law, and the trial lawyer said his overall philosophy is clients’ cases belong to them more than to him. He said some lawyers “don’t want to be the jockey, they want to be the horse, and it bothers me where I see lawyers go to trial when they shouldn’t.”

That said, he has tried plenty of trials to juries, and he said he’d bring a sharp legal mind, a trial lawyer’s perspective and administrative experience culled from 18 years as his firm’s managing partner. “I’ve worked 60 hours a week for 32 years and I don’t plan on working any less,” Lienhoop said. He added he would move to Indianapolis if appointed to the court.

He said the jury system offers more collective wisdom than almost any other situation. Asked about his judicial philosophy, Lienhoop said, “I’ve always been a student of the law, I love the law, and I consider it a calling and not just a job. … The role is to correctly interpret the law and apply it to the facts.”

Here are highlights from the Wednesday morning interviews:

Thomas P. Yoder, partner, Barrett McNagny LLP, Fort Wayne
Fielding a question about his age, which Yoder described as a youthful 64, the former Indiana State Bar Association president said the court currently is comprised of younger justices who could exit in a couple of decades, giving a future governor an opportunity to pack the court.

 “I think I’m perfect,” Yoder quipped when asked about his age. “In 10 years I will be on the cusp of mandatory retirement,” which he said wouldn’t necessarily be a negative given the court’s current more youthful composition. Also, he said Fort Wayne and northeast Indiana hadn’t had a justice on the court since he began practicing.

“I want to have a public voice,” Yoder said, something he’s not had since departing as ISBA president some 15 years ago. He said the court needs an experienced practitioner and touted his experience in business law.

Geoffrey G. Slaughter, partner, Taft Stettinius & Hollister LLP, Indianapolis
Slaughter told the commission his work as president of the Indiana Bar Foundation has illuminated the need to extend civil representation and legal assistance to unrepresented litigants and those in need. “We’re making important strides in that area,” he said.

The most important traits for a justice are legal ability, collegiality and civility in dealing with lawyers who come before the court, he said. He said his experience of the past 15 years in private practice and six years prior to that with the attorney general’s office would be a good fit for the court.

“I bring the practitioner’s perspective,” he said. “I like to think I would bring to the court experience in some substantive areas of law in which I’ve had some relevant experience, mostly in the business realm,” he said. Slaughter also said he would be eager to assist with efforts to increase pro bono work and court administration.

Thomas E. Wheeler II, partner, Frost Brown Todd LLC, Indianapolis
Wheeler stressed his 30 years as a trial lawyer, his connections with the Legislature and current and former governors, and efforts to increase state funding for the judiciary as reasons he should be appointed to the Supreme Court. The former chairman of the Indiana Election Commission, whose decision that stripped the office from former Secretary of State Charlie White was affirmed by the high court, noted the political nature of the case.

He said the bipartisan committee handled the case collegially. “We were able to work together, and that’s what needed to happen,” Wheeler said. “Generally, I’m a team player; I like to block out and rebound and not score.” He said that would be his approach on the court, and he said late Justice Antonin Scalia’s sometimes acerbic manner of argument and writing caused him concern.

Wheeler said he would seek general fund increases to ensure equal access to courts statewide. “Right now we have a system where, frankly, access to justice depends on which side of county line you’re standing on, and I don’t think that’s acceptable,” he said.

This page will be updated as the interviews continue.


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