Environment and Economic Development

VIEWPOINT: Choosing judges: If process isn't broken ...

November 28, 2005

As the 2006 legislative session approaches, the business community should urge the General Assembly not to resurrect proposals to change appellate judicial selection it considered last session. These proposed changes are misguided because Indiana's system has worked well to build an appellate judiciary we can be proud of.

The proposed changes work against the predictability, stability and sophistication necessary to ensure an appropriate judicial climate, and Indiana's business leaders should oppose them. Although last session's measure may not come up in identical form, there are likely to be proposals for change as long as Indiana's courts are involved in controversial issues.

Under the current constitutional provision, the governor appoints Indiana's Supreme Court and Court of Appeals judges from a list of three candidates proposed by a Judicial Nominating Commission. This list consists of a Supreme Court justice, three non-lawyer members appointed by the governor for staggered terms, and three lawyers elected by other lawyers. After appointment, judges stand for retention election (a vote on whether to keep the judge in office, with no oppo nent on the ballot) after serving for two years, then every 10 years thereafter.

The proposed change included:

Adding state Senate confirmation of gubernatorial appointees

Removing the public retention vote, substituting a state Senate retention vote

Changing the composition of the nominating commission by allowing legislative leaders to appoint members, reducing the number of commissioners elected by lawyers.

These proposals would further politicize the judicial selection process, discouraging the most qualified candidates from applying for judicial vacancies because they could be exposed to a highly politicized and intrusive public hearing process.

The proposal further would remove lawyers-who have a stake in a wellfunctioning system and who are the best arbiters of some (not all) judicial qualifications-from the nominating process and provides additional opportunities for special interests to exert undue influence on judicial selection and retention.

The current appellate judicial selection system is not broken. Our appellate courts-especially the Indiana Supreme Court- are increasingly looked to as leaders by other states, and their decisions, by and large, have enhanced the business climate.

A 2004 U.S. Chamber of Commerce survey ranked Indiana's litigation environment sixth-best in the nation, assuring timeliness, class-action rules and punitive damages, as well as judicial competence, impartiality and predictability. In contrast, Mississippi Gov. Haley Barbour recently said his state's pro-plaintiff litigation climate was a major factor in Toyota's decision not to locate a facility there.

Our Supreme Court, unburdened from a crushing criminal caseload by a 2000 constitutional amendment, has spent increasing time bringing certainty and predictability to many areas of civil and commercial law. As Chief Justice Randall T. Shepard has said, "Effective courts play an important supporting role" in economic development. The business community has benefited from the current appellate judicial selection procedure and should oppose any efforts to change it.



Laramore is lead partner in Baker & Daniels LLP's appellate practice. He managed the judicial appointment process as counsel to Govs. Frank O'Bannon and Joe Kernan.
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