Who Should Pick Judges: People or Officials?

June 8, 2010

For release Tuesday noon June 8 and thereafter (670 words)
Despite efforts to give Indiana voters more say on big issues – referenda over public spending being a notable example – there’s no such movement when it comes to judges of the state Supreme Court and Court of Appeals.
Indiana has enjoyed a competent judiciary thanks to: 1) A selection process that uses an appointed commission to narrow down applicants, and 2) has the governor pick from a pool of three finalists and gives the public the chance to throw out rascals every 10 years during “retention votes.” No judge has ever been thrown out that way, but somehow the process works.
A case in point is Theodore Boehm who is retiring after 15 years on the Indiana Supreme Court. Appointed by Gov. Evan Bayh, he’s been praised for his legal acumen by Democrats and Republicans, including Gov. Mitch Daniels who said it would be no easy task to find a worthy successor.
His choice may face extra scrutiny because of what’s going on in Missouri, which developed the selection model on which Indiana’s system and that used in about 30 other states is based.
The Missouri Plan took effect in 1940 and ushered in the era of merit selection. According to the American Judicature Society, prior to its adoption, “judicial selection in Missouri was controlled by political machines and party bosses who sought to unseat judges who issued unfavorable rulings.”
A group called Show Me Better Courts says there’s still politics in the courtroom, but now it’s controlled by trial attorneys — “greedy personal injury lawyers” — who want favorable rulings for clients. The reformers have collected signatures for a ballot initiative that would replace the appointment system with elections.
The debate has drawn national attention. The Wall Street Journal  recently endorsed the initiative arguing that merit selection gives too much control to lawyers. “The effect has been to give a single profession control over a third of state government with little political accountability.” Similar worries have been raised in Tennessee where Gov. Phil Bredesen chastised a nominating commission for trying to force the bar association’s cronies on him.
Although such concerns are legitimate, a thornier problem occurs when top judges are elected. In 2006, the nonpartisan Justice at Stake reported the median expenditure of state supreme court candidates was $250,000. In Alabama $8.2 million was spent on one race for chief justice. If the public wants an unbiased legal system, it can’t ask judicial candidates to grovel for money.
Several provisions in Indiana’s law make it unlikely our system could be hijacked by special interests. The seven-member Judicial Nominating Commission is chaired by Chief Justice Randall Shepard and, while it includes three lawyers elected by bar association members, it has three citizen members appointed by the governor. The process is transparent so it’s hard to rig.  Applications are all made public and initial interviews are conducted in public.
The bar association likes Indiana’s system so much that it has called for its extension to the trial court level where voters still elect judges on partisan ballots. The argument can be made, however, that lawyers would then have too much say. Our dual system in place since 1972 – one level elected and the other appointive – is itself a check on judicial behavior. If lower court judges act politically they can be reined in on appeal.
Daniels declined to comment for this column in light of the pending appointment. He made his views known in 2009 in vetoing HB 1491, which would have replaced merit selection in St. Joseph County, one of two counties that does not elect trial judges, with elections. He said, “The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded . . . It has produced outstanding jurists and contains sufficient measures of public accountability.”
The same can be said of Indiana’s process for appellate and supreme court judges. It’s why Indiana should stick with the Missouri Plan even if Missouri decides not to.

Andrea Neal is a teacher at St. Richard’s School in Indianapolis and adjunct scholar with the Indiana Policy Review Foundation. Contact her at aneal@inpolicy.org.


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