The verdict will still be out on how we will select judges in Marion County when this article is printed, but for the first time in decades, we know we will have an entirely new system of selection before May 2017. Hopefully it will be in this legislative session but, if not, in the next.
Since I am no longer a Marion Superior Court judge and because I have participated in both our former system of slating and electing candidates and two different merit-selection systems, I feel as qualified as anyone to speak about the issue. Smart and fair-minded people can have differing views, and do, but for my money I’ll take merit selection any day of the week. This discussion is not about getting “better” judges. We have a very strong bench in Marion County currently and, with rare exception, we have had good judges in the past. In fact, we have had some truly great judges in Marion County. The IndyBar repeatedly emphasizes that we have as strong of a bench now as we have ever had.
A good system of selecting judges should have several attributes. We should have a system that encourages, not discourages, as many lawyers to compete for the judicial positions as possible. This means a system where a candidate is not deterred by onerous campaign obligations, especially ones that stretch the candidate’s ethics. We need to have a system that selects judges who reflect our community in all respects, including, but not limited to, gender, race and ethnicity. Marion County should have a selection system that considers a candidate’s preparedness for the job, including scholastic achievements, leadership and administrative prowess, professional accomplishments and acknowledgements, legal writings, temperament and professional reputation, among other criteria. It must be removed from cronyism. It must be dignified, if we want our citizens to respect it and the judges who are selected. It should preserve the independence of the judiciary from external influence, including the perception of influence caused by judicial fundraising.
We are fortunate to have a few lawyers, many of them Marion County lawyers, who are members of the General Assembly. Sen. Mike Young has taken an active role in shepherding a merit-selection system through his chamber of the Legislature. So far Sen. Young has been accessible and interested in the expertise of the IndyBar in judicial selection matters. We have tried to provide suggestions for an improved merit process. I know that Sen. Young has reached out to many different constituencies to receive feedback on how his bill could be made even better.
I’m well aware that there are lawyers and judges who do not agree with the IndyBar’s support for merit selection. The arguments I have heard center around a concern that a merit system will not produce a diverse bench or one as sensitive to the opinions of the electorate. I went through the former slating/election system three times. I was frequently asked what my position on abortion is and what I would do to provide proper care for my children when I worked. I wondered if the male candidates were asked about their child care. While the slating/election system has provided more opportunities for women and minorities, so has the world at large. Opportunities are more widely available now than ever before and I don’t assume the diversity we have on our Marion County bench is a result of anything other than the obvious evolution of thinking in our country and state. National research has, in fact, shown merit selection to produce a more diverse bench. I believe the party organizations sincerely try to support qualified and competent judges. These were sincere and well-meaning citizens who made a big effort to be informed. In a county of nearly a million residents, it’s nearly impossible for the electorate to know the actual qualifications of a candidate for judge.
The IndyBar is working to have as many Marion County attorneys on a selection committee as possible. We are working to encourage an acknowledgement in the selection bill that our current judges have earned their jobs through an election process.
For those who want the judiciary to be more “in tune” with the opinions of the citizens, I have to wonder how many of them have an understanding of this third branch of government and the brilliance of our Constitution. Judges are not supposed to substitute their personal opinion, nor the opinion of those who selected them, in ruling on cases. That’s the job of the legislative and executive branches of government, not the judiciary. If the courts get it “wrong” in the minds of legislators, they can change the law. Every lawyer reading this column should acquaint themselves with SB352. Surely your legislator wants to hear your views. After all, isn’t that how the Legislature is supposed to work?