With the upcoming vacancy resulting from Justice Theodore R. Boehm’s decision to step down from the Indiana Supreme Court, there exists a renewed interest about how justices are selected to our state’s highest court. In particular, many questions have been posed about the role of the Judicial Nominating Commission in Indiana’s selection process. Given this increased attention, I decided to set aside my usual discussion about judicial ethics in this column in order to answer some of these recurring questions.
In 1970, the Indiana Constitution was amended to create the Indiana Judicial Nominating Commission. By Constitution and statute, the Nominating Commission is charged with vetting applications and submitting a list of the three most qualified applicants to the Governor for each vacancy that occurs on the Supreme Court, Court of Appeals, or Tax Court. The Governor then appoints an individual from that list to fill the vacancy.
How does the Nominating Commission select its nominees?
Typically, the Commission first publicly announces the vacancy and solicits applications for the position. After selecting appropriate applicants for further consideration, the Commission conducts background checks, publicly interviews the selected candidates, and deliberates in private about the candidates’ qualifications. I.C. § 33-27-3 et seq. By statute, the Commission is required to consider each candidate’s legal education, legal writings, reputation in the practice of law, physical ability to do the job, financial interests (for conflict-of-interest purposes), public service activities, and any other pertinent information the Commission feels is important to select the most qualified candidates. See I.C. § 33-27-3-2. The Commission then votes in a public session for the three top nominees and submits a report to the Governor with a summary of the three nominee’s qualifications. The Governor then has 60 days to make the final appointment.
Are there any procedures that the Governor must follow before making his selection?
No, the Governor has no restrictions in the steps he may use in making his appointment. He may interview each of the three candidates and conduct whatever process he deems appropriate in making his final decision.
What happens if the Governor doesn’t make a selection within 60 days?
Indiana Code § 33-27-3-4 provides that if the Governor does not make an appointment within 60 days, then the Chief Justice of Indiana is required to make a selection from the list of three nominees. To date, this section has never been invoked, as no Indiana Governor has forfeited his power to appoint a justice of the Indiana Supreme Court.
How are the members of the Judicial Nominating Commission selected?
The composition of the Commission is governed by Article 7, Section 9 of the Indiana Constitution and I.C. § 33-27-2 et seq. The Nominating Commission consists of seven members: three attorney members, three non-lawyer members, and the Chief Justice of Indiana, who is the ex officio Chairman of the Commission. An attorney and a non-attorney representative are chosen from each of three geographic districts of the Court of Appeals. Attorney members serve three-year staggered terms, after being elected by the attorneys in their respective districts. The Governor appoints the non-attorney members, one from each of the Districts, to serve three-year terms. Other than the Chief Justice, all Commission members must reside during their tenure within the district from where they were appointed or elected.
Are there any limits on who can be a member of the Nominating Commission?
The State Constitution sets other limits regarding who may serve on the Nominating Commission. No member of the Nominating Commission, other than the Chief Justice, may hold any other salaried public office, and no member may hold an office in a political party or organization. Article 7, Section 9 of the Indiana Constitution further indicates that no member of the Nominating Commission is eligible for appointment to a judicial office during the member’s tenure with the Commission and for a period of three years after the expiration of his/her term.
Who is currently on the Nominating Commission?
Christine Keck, an Evansville resident and the Director of Strategy and Business Development for Renewable Energy at Energy Systems Group in Newburgh, and James O. McDonald, Esq. of Terre Haute serve as the Commission’s First District representatives. Fred McCashland, an Indianapolis resident and retired government teacher from Brebeuf Jesuit Preparatory School, and John C. Trimble, Esq., a senior partner at Lewis Wagner, LLP in Indianapolis, serve as its Second District representatives. Mike Gavin, a Warsaw resident and Senior Vice President, Credit Administration, at Lake City Bank in Warsaw, and John O. Feighner, Esq., a partner at Haller & Colvin, P.C. in Fort Wayne, serve as the Third District representatives. Indiana Supreme Court Chief Justice Randall T. Shepard is the Chair. All members have voting rights.
How many Indiana justices have been appointed under the merit selection system?
Eight. Justice Alfred Pivarnik, who joined the Indiana Supreme Court in 1977 and served through October 1993, was the first justice selected under the nonpolitical merit selection system. Besides the five current justices, the other justices selected under this system are Justice Jon Krahulik, who served from December 1990 to October 1993, and Justice Myra C. Selby, who served from January 1995 to October 1999.
Over the years, what has been the gender distribution of the Nominating Commission’s Supreme Court nominees?
Since 1985, the Judicial Nominating Commission has nominated eight women and sixteen men to the Indiana Supreme Court. (Judge Betty Barteau was nominated by the Commission twice.)
How many of the Commission’s nominees were sitting judges?
Since 1985, thirteen individuals who were selected as the Commission’s final nominees were sitting judges at the time of their nominations. (Judge Barteau was an Indiana Court of Appeals judge at the time of both her nominations.)
Given the role that recommendations play in the selection process, are current judges permitted to submit recommendation letters on behalf of a particular candidate?
Ok, so I sneaked in an ethics question, but I have been asked this one a lot in the last few months. Yes, judges may participate in the selection process by writing letters of recommendation for particular candidates or by otherwise initiating communications or responding to inquiries from Commission members about the professional qualifications of a person considered for judicial office. See Ind. Judicial Conduct Rule 1.3, Comment 3. Judges even may use official court letterhead for these recommendations.