Education & Workforce Development and Government and Technology

Shepard for the U.S. Supreme Court GERALD BEPKO Commentary:

May 9, 2005

Acrimony and the politics of personal destruction in our nation's capital seem to be at a seasonally adjusted high point, owing in significant part to the divisive issue of federal judicial appointments. Much of this is based on the belief that courts have arrogantly ventured beyond the interpretation of law, envisioned by the founders of our government as the role for the judicial branch.

These perceptions make the Senate's advise-and-consent role in judicial appointments much more fractious. The prospect that President Bush will soon fill one or more vacancies on the U.S. Supreme Court has produced an anticipatory filibuster of lower-court nominees and the threat of a "nuclear option," suggesting a level of rancor that may risk grievous collateral damage in pursuit of victory.

The best way to stop the flow of political poison is to set the appointment process on a new course by advancing for the U.S. Supreme Court nominees who have exceptional careers as appellate judges, not as ideological candidates in waiting. There are outstanding people whose respect for the role of the courts and the self-imposed limits of their power, as well as leadership in the judiciary as a professional institution, are shown in a long record of dedicated service.

For his first U.S. Supreme Court nominee, and maybe for chief justice, President Bush should look for an outstanding "red state" Republican Supreme Court justice with an extended and distinguished, nationally noted career as a jurist. I have someone in mind.

Through the 1970s, the Indiana Supreme Court was good, but not exceptional. Today, by any measure, it is one of the best in the country.

This dramatic improvement tracks the career of Chief Justice Randall Shepard. His appointment as chief justice by Gov. Robert Orr in 1987 is seen as the turning point.

Before this appointment, Shepard had served for two years as associate justice and five years as a trial judge after completing a superb educational foundation. He earned academic honors at Princeton University and Yale Law School.

His thoughtful, judicious decisionmaking is a matter of record in more than 800 majority opinions as well as articles published in 20 different journals.

His leadership as a judge is a matter of record by way of the national offices he has held. This includes chairman of the American Bar Association Appellate Judges Conference, which includes 700 state and federal appellate judges, and his recent selection as president-elect of the National Conference of Chief Justices, composed of the 55 chief justices of the states and territories.

His standing as a thoughtful student of law and the judiciary is of record in invited lectures, such as his recent invitation to give the coveted William Brennan lecture at New York University in 2006. Also, he has been invited to join the faculty of the prestigious Institute for Judicial Administration at New York University.

His national activities have not meant any lack of attention to Indiana concerns. He has led a series of reforms in Indiana, including technology applications to aid the judiciary and the use of interest on lawyer trust accounts to support pro bono programs and disadvantaged law students.

His annual State of the Indiana Judiciary address to the General Assembly has become a model to emulate. And he led a recently completed successful movement to pay Indiana judges commensurate with the rising scale and quality of their work.

The careful, prudential leadership of Randall Shepard suggests he may be just the sort of person who could help the judiciary refocus and sail around troubled waters. Perhaps our senators will take note.



Bepko is IUPUI chancellor emeritus and Indiana University trustees' professor at IUPUI. He can be reached by e-mail at gbepko@ibj.com. Shepard
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