By Theodore R. Boehm, Hoover Hull Turner LLP
From 1975 through 2014, with a few minor tweaks, half of Marion County judges were elected in the Republican primary and half in the Democratic primary. No party was allowed to nominate more than half the number of seats up for election. This system initially allowed for one loser in the general election, but in the 21st century the parties’ two monopolies, each on half the Superior Court bench, were cemented and the general election became a complete farce.
This shared monopoly worked pretty well in terms of the quality of the bench. So most of us were reasonably satisfied with an undemocratic system that produced, with few exceptions, capable hard-working judges. Challenges to this bipartisan accommodation came not from concern about the judges it was producing, but about the pressure put on the legal system by the parties’ demands for ever escalating “slating fees” required for the party’s blessing in the primary that had become the gateway to the bench. When the parties came to see the bench as a cash machine exploiting the willingness of lawyers to support judicial candidates, it was time to challenge a system that turned judicial selection into a private for-profit enterprise.
The ACLU challenged this judicial selection system as incompatible with basic democratic principles, and the Seventh Circuit ultimately affirmed Chief Judge Young’s opinion finding it a violation of the federal Constitution. There were no judicial seats up for election in 2016, so the General Assembly elected to pass on filling the void. Now, however, if nothing is done by the legislature, presumably the courts will design a process for us before the 2018 election.
The Indianapolis Bar Association has endorsed the House version of House Bill 1036 which would fill this gap by creating a new Marion County Judicial Selection Committee. In that version of the bill, the committee is to propose three nominees to the Governor to fill any vacancy. The Governor is constrained by the requirement that no more than fifty-two percent of the Marion County bench are to be of the same party. The committee’s processes are similar to the seven-member Judicial Nominating Commission (JNC) that has chosen three candidates to fill any vacancy on the Indiana Supreme Court or the Court of Appeals since 1970.
The Marion County Committee differs from the JNC in its size (14 members) and composition. The JNC is chaired by the Chief Justice of Indiana, and has three members elected by the lawyers of the state and three appointed by the Governor. The Marion County Committee proposed by the House version of H.B. 1036 has four members appointed by leaders of the Indiana House and Senate, four attorneys appointed by the presidents of the Indianapolis Bar Association, the Marion County Bar Association, the Indiana Trial Lawyers Association, and the Defense Trial Counsel of Indiana, four appointed by the Marion County chairs of the two major political parties, and two appellate judges chosen by the Chief Justice and the Chief Judge of the Court of Appeals.
Some have complained that giving appointments of eight of 14 seats on the committee to officeholders or party officials injects “politics on steroids” into the process. But the political appointing officials are equally divided between the two major parties. And H.B. 1036 has two major benefits: it removes the judges from fundraising and assures careful review of candidates’ qualifications and character. In the judgment of those closest to the legislative pulse, giving politicians right to appoint members of the committee is necessary to make the bill palatable to the General Assembly. H.B. 1036 isn’t perfect, but it’s the best we can do.
There have been concerns voiced by some members of minority communities that this bill is antidemocratic because it denies the voters a voice in the process. But if the real concern is that the committee will produce a less diverse bench, the experience with the JNC and other commissions shows otherwise. And lawyers in the two counties—Lake and St. Joseph— with nominating commissions report they are pleased with the bench they get from their nominating commissions.
Selecting a judge requires evaluation of professional skills, patience, hard work and integrity. History has shown time and time again that in major metropolitan areas, the vast majority of the general voting public does not know the judicial candidates, and does not have the interest or access to information to make an informed decision. Support H.B. 1036 as the best practical hope to confine fundraising to the political branches and ensure proper vetting of candidates.
Boehm served as Associate Justice of the Indiana Supreme Court from 1996 to 2010, authoring the most majority opinions for the court in that span.