Randall Shepard: Indiana does appellate nominations far better

ShepardYou’d have a hard time finding anybody who expresses approval of the recent struggle in Washington, D.C., over replacing Justice Anthony Kennedy on the U.S. Supreme Court. Whether the discussion focuses on nominees or senators or witnesses, Americans are mostly distressed by what they have seen.

Indiana has re-demonstrated a manner of selecting higher court judges that produces both applauded appointments and a sense of legitimacy.

Judge Elizabeth Tavitas was sworn in last month as the newest member of the Indiana Court of Appeals. The capacity crowd in the Supreme Court courtroom featured family and friends, fellow trial court judges, and elected officials from both parties who made the trip to show their approval.

They were right to salute Tavitas, formerly a trial court judge in Lake County. She’s been a thoughtful, impressive and reform-minded member of the judiciary.

That day was also a celebration of how different Indiana’s system is from the one in Washington.

For much of Indiana’s history, we elected members of the state’s appeals courts, including our highest court. In 1970, the voters decided to go in a different direction and adopted what is usually called “merit selection” or the “Missouri Plan,” after the state that invented this method.

Now, when a vacancy occurs in the appellate courts, a screening committee chaired by the chief justice calls for applications, conducts open interviews and votes to decide on the best three candidates, using a list of qualifications adopted by the General Assembly. The committee, formally known as the Judicial Nominating Commission, consists of the chief justice, three attorneys chosen by a vote of the state’s lawyers, and three non-lawyers appointed by the governor.

The governor then appoints one of the three finalists. Gov. Eric Holcomb and his legal team, led by Joseph Heerens, have enhanced the examination of the three finalists by adding on-site visits in the counties where the nominees live and practice, for example.

The governor’s appointee takes office and is then subject to periodic votes by the public—“Should the judge be kept in office, yes or no.” Over time, the percentage of Indiana voters participating on these retention questions has been rising, and the percentage of voters who vote approval has also been rising.

This method has provided our state with a series of good outcomes. For example, it has fostered growing participation by women (not to mention the first minority appellate judges in our history). Indiana has three appellate courts, and the chief judges of all three are presently women.

Moreover, it has produced what former Indiana Supreme Court Justice Ted Boehm once called “raging moderates.”

To be sure, as the Governor’s Office moves between parties, there tend to be more judges from one party or the other, but the system rarely generates partisanship and produces few predictable lineups in deciding cases.

During his last two full years on the Indiana Supreme Court, for example, Justice Robert Rucker was the sole Democratic appointee, the Republicans having won several gubernatorial elections in a row.

But that didn’t result in partisan lineups in the closely watched 3-2 decisions. In 2016, there were seven such decisions, featuring four different lineups, and Rucker was part of the majority in five of the cases. During 2015, there were seven different 3-2 lineups, and Rucker was in the majority just under half the time.

Not much ground for chatter about predictable voting, as there has been in Washington—more like judges focused on facts, law and applying one to the other impartially.

I say that recent weeks have proven Indiana’s on the right track.•

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Shepard, formerly Indiana chief justice, now serves as senior judge and teaches law. Send comments to ibjedit@ibj.com.

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