Opinion and Forefront

BOEHM: Good reasons not to toss out judges

November 3, 2012

Ted BoehmThe ballot this year will ask you whether two judges of the Indiana Supreme Court and four on the Court of Appeals will be retained in office. Don’t forget to vote yes on all six retention questions. And vote yes every November in the future unless you have reliable information from a credible, objective source that a particular judge is consistently performing below par. Here’s why.

Judges for Indiana’s Supreme Court and Court of Appeals are appointed by the governor from a list of three nominees chosen by a nonpartisan, seven-member Judicial Nominating and Qualifications Commission. Most voters do not know who the candidates to fill a vacancy on the two courts are, much less have an informed view of their qualifications. That’s why it is sensible to leave the initial choice to the governor and the commission.

Voters get a chance to remove a judge in the first general election two years after appointment, and every 10 years after that. The Indiana Constitution provides this means to remove an incompetent or corrupt judge.

There is no such claim as to any of the six judges on the ballot this year. The state and federal constitutions intentionally created independent judges who, from time to time, must make decisions that protect minorities against the majority, or citizens against the government. A decision that may be temporarily unpopular cannot be the reason to remove a federal judge and should not be in Indiana.

There are many reasons you should vote yes if you have no chronic and incurable reason to replace a judge.

First, our successful form of government depends on the rule of law. This requires a judiciary independent of the executive and legislative branches, and also independent of the transient majority opinion of the people as a whole.

Second, much of the day-to-day work of the courts resolves issues where it is more important that the rule be settled than that it be decided one way or another. Stable courts with low turnover on the bench produce consistent rulings.

Third, retention also encourages the best people to consider a career in the judiciary. A sitting trial judge in a safe county or a successful lawyer gives up a lot to take a seat on an appellate court. If we start removing judges because a vocal minority disagrees with a court ruling, it will deter qualified candidates from seeking the position.

It is important that you vote yes because of a problem with the retention election process. This election is not the usual choice among candidates, where voters who don’t have a preference can leave the choice to those who do. Voters are asked to respond yes or no to the question as to each judge.

These questions are buried at or near the end of the ballot. Many voters are unaware that there are judicial retention questions on the ballot, and many others forget to look for them. So only a small percentage of those who vote on the national and statewide offices will vote on the judicial retention questions.

A judge will be retained for another 10 years if the yes votes outnumber the no’s. So in a retention election, a small minority casting no votes could result in removal if a silent majority fails to vote.

Although it has never happened in this state, a few sitting judges have been defeated in retention elections in other states.

Judges don’t raise campaign funds. They don’t have campaign staffs. So they are subject to last-minute ambush attacks from disgruntled litigants or misguided ideologues. They depend on sensible voters to trust that their governors have made wise choices and vote yes unless they have some really good reason to oppose retention.•

• Boehm is a retired Indiana Supreme Court justice who previously held senior corporate legal positions and helped launch amateur sports initiatives in Indianapolis. Send comments on this column to ibjedit@ibj.com.

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