Indiana Supreme Court Touches Off Protest, Recall Demand
May 25, 2011
Could Hoosiers follow Iowa’s example and dump justices who don’t fit their values and see themselves not as impartial arbiters of the law, but as imperial overlords? Stay tuned!
A new ruling by the Indiana Supreme Court that citizens have no right to stop unlawful police searches of their homes has sparked a mass protest in Indianapolis and calls for the removal of Chief Justice Steven David. Justice David rose to the bench through the state’s “merit” selection system, but will have to face voters in a retention election in November 2012. Indiana’s House Speaker, Senate President and Attorney General have all asked the Court to reconsider its ruling.
Rally organizer Jeff Houk, who has launched a PAC to oust Justice David, said it’s “important for people to realize that we do have a political voice and there are ways that we can get our voices heard.” If those words sound familiar, it’s the same sentiment expressed by Iowans who struck a blow against judicial imperialism last November. Both Gary Marx at NRO’s Bench Memos and Gavel Grab have comments on the controversy.
Will “Merit” Selection Become an Issue in the Presidential Primary?
February 9, 2011
Carrie Severino over at NRO’s Bench Memos has an interesting post examining the support of “merit” selection by one highly-regarded governor who also happens to be a potential Republican presidential candidate: Indiana Governor Mitch Daniels. Severino correctly notes that “merit” selection was a Progressive Era scheme to put legal “experts” in charge of judicial selection, rather than the people or their elected representatives. Whether you view the birth of “merit” selection as noble or arrogant, there is little dispute that it has become “a mechanism by which trial lawyers and left-leaning special interests can capture the state’s judicial branch.”
As Severino points out, this is how Iowans got saddled with a Supreme Court willing to blithely overrule the legislature’s traditional marriage statue. It’s also how Gov. Daniels wound up appointing the former chief defense counsel for the terrorists held at Guantanamo Bay as the newest member of the Indiana Supreme Court.
If Gov. Daniels felt his hands were tied, he need not look far for blame. When a bill to toss out “merit” selection was approved by the Indiana House 88-3 and by the Senate 35-15, Gov. Daniels vetoed it.
A New Argument Against “Merit” Selection in Indiana
September 24, 2010
Jonathan Watson and Mia Reini have a great piece in today’s Indianapolis Star that makes an original argument against “merit” selection that I’m embarrassed to confess was unfamiliar to me.
According to Watson and Reini, national polling shows that in states with “merit” selection, voters actually believe their elected governor has the ability to independently select justices for the state Supreme Court, when in fact the governor is bound by the choices of an unelected commission.
If this is true, it means that most voters don’t even understand how “merit” selection really works or how “merit” selection strips away all public accountability for judicial selection and for judges themselves. In other words, many voters who may support “merit” selection are laboring under the false impression that that their elected governor has the final say over court appointments.
Watson and Reini made me realize how crucial it is for supporters of judicial accountability to clearly outline all the facts about “merit” selection. Once voters understand that “merit” selection effectively cuts them out of the picture, public support will evaporate.
More ACORN Funny Business in Indiana
May 19, 2009
I’ve already written about ACORN’s suspicious (and possibly illegal) voter registration activities in Nevada, which have attracted the attention of the Secretary of State’s and Attorney General’s offices. But why stop there? ACORN’s activities don’t.
In Indiana last year, ACORN came under attack for filing over 2,000 voter registration forms that CNN described as “bogus.” As the Republican election board member for Lake County, Indiana, Ruthann Hoagland, noted, “All the signatures looked exactly the same. Everything on the card filled out looks exactly the same.”
You can believe that the schools of Lake County teach precise penmanship – or you can believe that ACORN was trying to register thousands of voters fraudulently. This is a state that Obama eventually carried by just over 26,000 votes, after a 20-point victory for Bush over Kerry in 2004.
Democrat member of the board Sally LaSota chimed in with this: “ACORN, with its intent, perhaps was good in the beginning, but went awry somewhere.” For her part, Hoagland, trying to be generous, said, “We have no idea what the motive behind it is. It is just overwhelming to us.”
I think I can guess.
“Merit” Selection And The Founders
April 24, 2009
Former Supreme Court Justice Sandra Day O’Connor was campaigning in Indiana for “merit” selection earlier this week. Justice O’Connor dismissed the idea that judges should be chosen by the people through democratic elections and trots out the Founding Fathers in support of her cause:
“Our forefathers would be surprised to find they were establishing a tyrannical system when they wrote the Constitution.”
In making this comparison, Justice O’Connor seems to be arguing that “merit” selection is somehow analogous to the federal system of selecting judges. But is this a fair analogy?
Federal judges are chosen by a President who is accountable to the people and confirmed by Senators also accountable the people. Public opinion about everything from the proper role of judges to the judicial philosophy that should guide the decisions of federal judges is so important that presidential and senate candidates devote entire speeches and policy papers to assuring voters their wishes will be taken into account.
Judges who reach the court under “merit” selection, on the other hand, are typically chosen by a small committee that is accountable to no one and is dominated by a single special interest group (lawyers). Neither the state’s governor nor senators can be held responsible by the voters for the ultimate selection because they are bound by the choices of the committee, so the pick isn’t theirs. Judicial selection commissions typically meet in private, making the process even less transparent and less accountable. Once on the bench, judges are “retained” in potemkin elections at rates that would make the old Soviet Politburo members blush.
The Founders believed that judges should be independent, but also accountable, which is why they didn’t concoct a system as undemocratic as “merit” selection. As James Madison wrote in Federalist 39:
“It is essential [Madison’s emphasis] to such a government [a democracy] that it be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it….It is sufficient [Madison’s emphasis] for such a government that the person’s administering it be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
If the federal system was truly analogous to “merit” selection, federal judges would be chosen by a secret committee chosen by lawyers from interest groups like the American Trial Lawyers Association and the American Bar Association; the President would be bound to choose from the list of nominees anointed by the committee; and Senators would have no confirmation role whatsoever. Viewed in light of Federalist 39, it seems plain that “merit” selection – where judges are chosen not by the “great body of society” (i.e. the people), but by “an inconsiderable proportion, or favored class of it” (i.e. a tiny committee of lawyers) – is exactly the type of system the Founders wanted to avoid.
Stirrings of Democracy in Indiana
January 26, 2009
Came across a blogger in Indiana alerting folks to a bill recently introduced in the state legislature by Democrat Rep. Craig Fry to give voters a voice in pickings justices on the state’s high court.
Perhaps the biggest change suggested in the legislation is that the justices would be elected by the general public to a 6-year term. The General Assembly would divide Indiana into three districts, and one justice would be elected by the voters of those districts. Two justices would be elected by all voters statewide.
Can Judicial Candidates Be Muzzled In Indiana?
May 12, 2008
A federal judge in Fort Wayne, Indiana has stepped in to block an Indiana Supreme Court decision upholding a rule that prohibits “judicial candidates from responding to questionnaires about their positions on issues.”
Of course, no one wants judicial candidates handing out pledges on how they would vote on specific cases. Prospective judges who did so would rightly win little public support. But broader prohibitions that restrict general discussions about issues and judicial philosophy by judicial candidates run afoul of the First Amendment.
In 2002, the U.S. Supreme Court (Republican Party of Minnesota vs. White) (text of decision is available here) struck down an effort by the Minnesota Supreme Court to restrict judicial candidates from discussing their views with voters: “The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”
Judges Sue to Block Gag Order
April 21, 2008
Two Indiana judicial candidates had to file suit last Friday to block a gag order that prohibits them from speaking about their judicial philosophies to Indiana voters. No one wants judicial candidates running around stating how they’d vote on a particular case. But don’t voters have the right to know what philosophy they will bring to the bench? The press release can be found at The James Madison Center for Free Speech website.