As the dwindling seconds of the clock ticked on the 1987 NCAA basketball championship game, Keith Smart launched Indiana onto the national stage by delivering a buzzer-beating two-pointer to defeat Syracuse and claim Indiana University a national title. But this was not the first time in March 1987 that the State of Indiana had attracted a national eye. Earlier that month, the Indiana Judicial Nominating Commission made history by selecting forty-year-old Randall T. Shepard as the state’s next chief justice, then the youngest chief justice in the United States.
In the twenty-five years since that appointment, Randall T. Shepard has continued to make history and to garner national respect for Indiana’s judicial system. In addition to authoring hundreds of opinions (many touching on issues of importance to other states), Chief Justice Shepard guided Indiana’s judiciary by launching and encouraging new programs aimed at improving the system.
With his recent retirement from the bench, this has left many to wonder—what comes next? Who will be the next Chief Justice and how will he shape Indiana’s judicial future? Once again, the Indiana Judicial Nominating Commission has taken on the spotlight, and the work that the Commission does and how it accomplishes those tasks have become topics of interest.
How will the next chief justice be selected?
Filling the vacancies created by Chief Justice Shepard’s departure (to the Court and to the office of chief justice) actually is a two-step process. First, the Indiana Judicial Nominating Commission had to submit the names of three nominees to the Governor for him to appoint the next justice of the Indiana Supreme Court. See Ind. Const., Art. 7, Sect. 10. The next step is for the Indiana Judicial Nominating Commission to meet to decide who, among the current justices of the Court (including the new justice), will become the chief justice. Once selected, the Chief Justice will serve a five-year term as the chief justice. See Ind. Const., Art. 7, Sect. 3.
Typically, the Nominating Commission’s procedure for selecting the chief justice starts with publicly interviewing all of the justices (regardless of whether the justice is seeking the office) to hear each one’s thoughts about what qualities are important for a chief justice to possess. After those interviews are completed, the Commission meets in an executive session to consider the qualifications of those justices who have indicated an interest in the office. The Commission then votes in a public session for the chief justice.
Indiana is the only state in which a judicial nominating commission selects the chief justice. See American Judicature Society Website, “Methods of Judicial Selection” at tinyurl.com/judicial-selection. In most states, the chief justice is selected by the members of the court, by popular election, or by gubernatorial appointment.
Who are the individuals responsible for making the chief justice selection?
The composition of the Nominating Commission is governed by Article 7, Section 9 of the Indiana Constitution and I.C. § 33-27-2 et seq. The Commission consists of seven members: three attorney members, three non-lawyer members, and the Chief Justice or a Justice of the Supreme Court whom the Chief Justice may designate. Currently, Justice Brent Dickson is serving as the Chairman of the Commission.
An attorney and a non-attorney representative are chosen from each of the three geographic districts of the Court of Appeals. I.C. §§ 33-27-2-1; 33-27-2-2. Attorney members serve three-year staggered terms, after being elected by the attorneys in their respective districts. I.C. § 33-27-2-2. The Governor appoints the non-attorney members to serve three-year terms. I.C. § 33-27-2-1.
First District Representatives
Molly Kitchell grew up in Kokomo, and then she moved to New England before settling down in Boone County. She obtained a B.A. in Sociology from Purdue University and then obtained an M.S. in Occupational Therapy from the University of Indianapolis, graduating first in the class for both her undergraduate and graduate programs. After graduation, she worked as an occupational therapist, primarily in the area of neurological and psychological rehabilitation. She and her husband, Ryan, have four children, and for the past ten years her primary focus has been raising them. In her spare time, she serves on the Board of Directors for the Governor’s Interagency Coordinating Council for Infants and Toddlers with Disabilities. Her term on the Commission expires 12/31/13.
James O. McDonald, Esq., grew up on a farm and continues to live on a working farm in western Vigo County. He was admitted to the Indiana University Robert H. McKinney School of Law when it was solely a night school. While going to law school, he worked in the office of Lieutenant Governor Richard Folz and then clerked for the Indiana Court of Appeals. Since 1972, he has practiced law in Terre Haute, concentrating on litigation of personal injury and business disputes for individuals and small businesses. His term expires 12/31/12.
Second District Representatives
Fred McCashland, a Marion County resident, is a retired educator from Brebeuf Jesuit Preparatory School. He obtained his B.A. in American History and American Government from Iona College and received a M.A. in American Government and International Relations from the University of Notre Dame. During his thirty-four year career at Brebeuf, he taught American history and government, chaired the social studies department, and served as an academic counselor. Other positions he served while at Brebeuf included Director of Development, Dean of Students, assistant to the President, and then President for two years. His term on the Commission expires 12/31/12.
William E. Winingham, Jr., Esq., is a partner at Wilson Kehoe & Winingham in Indianapolis. After graduating from the Indiana University Robert H. McKinney School of Law, he worked as a deputy prosecutor in the Marion County Prosecutor’s Office for three years, and then served as an Assistant U.S. Attorney for three years in the U.S. Attorney’s Office for the Southern District of Indiana. For the last twenty-five years, he has been with the civil litigation firm of Wilson Kehoe Winingham, LLC, focusing on plaintiffs’ personal injury work. His term expires 12/31/13.
Third District Representatives
D. Jean Northenor, a Kosciusko County resident, is a retired executive from Lake City Bank. She began her eighteen-year career with the bank in the marketing department and ended it as the Executive Vice President in charge of marketing, human resources, maintenance, and construction. She served two years on the Lake City Bank’s Board of Directors before retiring in 2003. In the 1980s, she also spearheaded the Kosciusko Leadership Academy to encourage young people to cultivate their leadership skills and to get involved in public service. Her term with the Commission expires 12/31/14.
John D. Ulmer, Esq., is a former partner at Yoder Ainlay Ulmer & Buckingham, LLP, in Goshen and presently serves as an attorney of counsel for the firm. He practices general trial work, focusing on personal injury and insurance defense litigation. He graduated with distinction from Indiana University Maurer School of Law and, while in law school, served on the Board of Editors for the Indiana Jaw Journal. He previously served as an Elkhart County deputy prosecutor and later, after leaving the office, was appointed to act as a special deputy prosecuting attorney on the Ford Pinto trial. He served in the Indiana House of Representatives from 1998 to 2008. His term on the Commission expires 12/31/14.
What factors does the Nominating Commission consider when evaluating a candidate?
Under Indiana Code § 33-27-3-2, 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 other pertinent information the Commission feels is important to select the most qualified candidates. As may be gleaned from the Commission’s questions during interviews, other factors also may be considered, in varying degrees of importance, such as an applicant’s trial or appellate advocacy background, administrative experience, pro bono commitment, ability to contribute to the diversity of the court, and other special professional talents.
When selecting a chief justice, other factors also may take on greater importance. For instance, given the number of speeches a chief justice delivers, a justice-candidate’s communication skills may be a significant factor. Likewise, factors such as the justice-candidate’s leadership skills, reputation for collegiality and consensus building, organizational management skills, vision, and ability to serve as a role model for the Court also may be influential considerations.
Just as 1987 proved to be a year of significance for Indiana, 2012 holds similar promises. As the Judicial Nominating Commission prepares for the business of selecting the next leader of our state’s judiciary, the hope is that the members will continue with Indiana’s historic and winning tradition. Having worked with this group for some time now, I am confident that they are up to the task. We are all in good hands and should be proud of what our State has to offer the national legal landscape.