Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
We should pick judges based on merit — the best, the brightest, the most qualified. We also should give every qualified person a chance to compete on the merits, regardless of race, religion, ethnicity, or patronage. That’s the American way, right?
But that’s not necessarily the way in Indiana. For years, the establishment has created a judicial selection system that appears to reward patronage and effectively excludes conservative minorities. With new conservative leadership, Indiana is at a point in time where it can and should move toward a system that gives everyone a chance to compete on the merits.
By some measures, Indiana has created the least representative bench in the country. For the first time in decades, our Supreme Court has reverted to an all-white institution and our intermediate appellate court includes only one minority.
In 2020, at the end of the previous Republican administration, the Seventh Circuit had become the nation’s only all-white federal appellate circuit. The state had only one minority federal district judge and only once in history, under President Reagan, has the state ever put a Republican minority on the federal bench.
For many years, in fact, Indiana’s establishment has discouraged conservative minority judicial candidates. Prospective candidates told us they were passed over because Republican powerbrokers wanted a woman, not a minority. That they weren’t seen as being out and about enough. That Asian Americans aren’t real minorities. Or that as a member of a non-Christian faith, they wouldn’t be considered sufficiently pro-life to earn an appointment.
Instead of recruiting a broad candidate pool, decisionmakers appear to reward patronage. Politicians have accepted tens of thousands of dollars from eventual nominees and even more from their law firms.
Here again, minorities are at a disadvantage. According to the American Bar Association, less than 3% of law firm partners in Indianapolis are minorities—the lowest percentage in the country. For attorneys in public service, a check for thousands of dollars can represent a financial hardship.
Today, our state’s new leadership should expand the pool of potential nominees to include qualified candidates with a wider range of personal and professional backgrounds, while reducing the influence of money and patronage.
By doing so, Republicans could demonstrate that conservatives can appeal to a broad set of voters without quotas or preferences. In the recent decision striking down Harvard’s admission policy, the Supreme Court endorsed a genuine, individualized assessment of a candidate’s life history and contributions. Indiana should do the same.
Moreover, a broader candidate pool would build confidence in the judiciary. Studies have found a relationship between the breadth of institutions and their public legitimacy. According to recent statistics, fully 37% of U.S. first-year law students are racial or ethnic minorities, numbers that create ample recruitment opportunities for Republicans.
Around the country, many Republicans seem to agree. U.S. Senator John Cornyn, a Republican, argued that more minority nominees would be “very helpful” because “people need to have confidence in the justice system.” He added that, “I think giving everybody a fair shot to serve is important.”
Peter Kirsanow, a black Republican member of the U.S. Civil Rights Commission, wrote that “Casting a wide net in the application process to insure as many diverse candidates as possible are vetted is consistent with the imperative of nondiscrimination while increasing the probability of selecting more diverse candidates.”
The solution requires everyone. For example, policymakers should expand the pool of people involved in the process.
Indiana’s Judicial Nominating Commission, which selects state appellate candidates for the governor, is and has been all white for some time, even though many qualified minorities would happily participate. At the same time, affinity bar associations should work together to identify, mentor, and encourage their best and brightest minority lawyers to enter the judicial selection process.
This isn’t about quotas, preferences, or DEI. By recruiting a broader candidate pool and involving a broader group of individuals in the selection process, the state’s new leadership could place outstanding candidates on the bench, increase public confidence in the judiciary, and give everyone a chance to compete on the merits.•
__________
Attorney Asheesh Agarwal lives in Zionsville and served in the first Trump Administration. Mike Witte is a senior judge and lives in Nineveh. Opinions expressed are those of the writers.
Please enable JavaScript to view this content.