What is the proper means by which we select judges?

   This question embraces a topic many would considered "high-brow." That assessment by those many is: (1) false and (2) an expression of a prejudice against knowledge and intellect grown over the past few decades. A prejudice fostered, in part, by people who want the many to remain ignorant. If you believe the subject of judicial selection will bore you, I suggest the stakes in judicial selection are very high.

   Judges are important. At trial court level, their decisions affect individuals’ lives in the most obvious of ways. There are many types of "civil" cases: divorce, and its various attendant issues of property division. If there are kids involved, one must consider custody, support, visitation, and how the decision of one judge can affect the lives of spouses, children, grandparents, creditors, employers, and neighbors. When a will is probated, the financial well-being of beneficiaries, those who believe they should have been beneficiaries, or those who claim a share in the estate by statute or common law, can be affected significantly.

   In criminal law, decisions in pre-trial proceedings may exclude evidence, force the State or the defendant to release evidence, or limit evidence either side may introduce at trial. If the case is tried to the court—the judge herself or himself—the judge holds an even more critical position. If the case is tried to a jury, the judge decides what instructions to issue to jurors. The demeanor of the judge also can carry weight with the jurors.

   At the appellate level, the ramifications of decisions, of which the general public often is quite unaware, can be much wider. As a general matter, appeals are taken after a final judgment. One side has prevailed and the other side wishes a higher court to review the case for errors. Years ago, the appellate courts of some states were called courts of errors. Perhaps someone saw a redundancy. Appeal would not be taken but for a party’s claim of error.

   The decision of an appellate court has precedential value within its jurisdiction. In Indiana, as an example, a published opinion by the Court of Appeals controls the interpretation lower courts would give on the same question. The Court of Appeals trumps the trial court. In similar fashion, the Supreme Court of Indiana trumps the Court of Appeals.  On questions of Federal law, the United States Supreme Court is the law of the land.  U.S. Const., Art. III, sec. 2.  Probably no greater examples of the importance of judicial selection exists than through the decisions of the United States Supreme Court.

Judges are supposed to be "above politics."

   At the 2011 Aspen Ideas Festival, United States Supreme Court Justice Stephen Breyer argued that judges—especially justices of the Court—are above politics. (In first year legal writing, law students are taught that only one court is properly referred to as the "Court.") 

   To be "above politics" would mean, to Justice Breyer, that an individual justice’s political views do not control her or his decision-making on the bench.

   Politics play a role in one’s journey from law school to the bench. There are various ways to attain the office of judge. Years ago in small counties, it was not uncommon for a recent law school graduate to seek and win the office of Circuit Court judge (the only court in some counties) because lawyers made more money in private practice than on the bench.  A change in the economy and boosts in judges’ pay have closed that avenue. In Marion County (Indianapolis), a person who aspires to the bench typically serves pro tem in one or more courts. Judges have busy schedules and need help to handle relatively mundane tasks such as presiding over initial hearings (criminal courts) or contested final hearings in divorces in which neither custody nor real property is at stake (civil courts). The latter cases are of a type few judges want to handle. Serving pro tem does not pay a check, but parlays experience.

   The aspiring judge will move up to commissioner. In this position, she or he may preside over more complex hearings and actual trials.

   If the person is serious about her or his quest, that person will choose to join (if the person already has not joined) one of the two major parties.

   At some point, the person will talk with colleagues about her or his aspirations. Before the start of the year for the election in which the potential candidate intends to run, communications will be opened with party officials.

Can the process of judicial selection be free of political considerations?

   "Politics" has been defined as "1. the science or art of political government.  2.  The practice or profession of conducting political affairs.  3. political affairs. 4. political methods or maneuvers. 5. (construed as pl.) political principles or opinions." The American College Dictionary, 1962 ed.

   Inherently the selection of a justice to the Supreme Court is a political matter. A justice is a part of the "political government" of the United States. The persons who nominate and confirm the person to serve on the Court are elected to political office. The United States Supreme Court is at the head of one of the three branches of the government of the United States of America. U.S. Const. Art. III, sec. 1. The justices are nominated by the president. They are appointed "by and with the Advice and Consent of the Senate."  U.S. Const. Art. II, sec. 2.  In other words, elected members of the other two branches of government determine who is selected to serve on the United States Supreme Court.

   The political nature of the process of selection of a justice, the position of justice, and the other players in that process was seen quite clearly in the 1987 hearings on the failed nomination of then-Judge Robert Bork to the Court. Bork made the mistake of openly responding to questions, chief among them those questions about his jurisprudential philosophy, from members of the Senate Judiciary Committee. Since his nomination, nominees for the nation’s highest court have been more circumspect in response to the committee’s questions.   

Two "poles" exist on the continuum of method of judicial selection.

   There are two means by which a judge may be selected: appointment and election. A good example of a purer form of the former is established in the United States Constitution. Article II, §2 provides the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..."  The nomination is made by the President, with the Senate’s role being to approve the nominee. This was the means of selection advocated by Alexander Hamilton.

   The second method of judicial selection is election. In Indiana, our circuit and superior court judges, at the county level, are elected. Given the nature of the office they seek, in Indiana judicial candidates are limited in the manner by which they may campaign.

   Hybrids of these two methods exist.

Two values underlie the "poles" of this continuum.

   Is judicial independence the greater value?

   Alexander Hamilton advocated appointment and lifetime tenure of judges in Federalist Paper Number 78. He feared the rights of the minority would be oppressed absent a judiciary insulated from political whims in the form of elections.

   Federal judges have not have been elected in our history. Inherently, however, they are part of the political process.    

   History would appear to give examples that support Hamilton’s view. The most compelling, perhaps, is if the Justices of the Supreme Court did not have life tenure in their positions, it is highly doubtful Brown v. Board of Education, 347 U.S. 483 (1954), the lead case that toppled segregation in this country, would have reached the Court, let alone been decided 9-0. State legislatures, certainly in the South but also in areas of the North and West populated by more of a bigoted electorate, would not have taken that action. Congress had not enacted Federal legislation to ban segregation, although our military, during the Korean "police action," had been desegregated by President Truman. Courts, troops, and a courageous President Eisenhower who supported the Court’s decisions, desegregated schools.

   On the other hand, appointments to the Court have become increasingly political. The notion those appointments are made without political considerations is chimerical. Earl Warren, who garnered the votes in Brown, is said to have obtained his appointment to the Court by agreement with Ike at the 1952 Republican National Convention in return for withdrawing as a candidate for president. That is not the sort of pristine process of selection The Federalist Papers imply for members of the Supreme Court. FDR’s legislation aimed at ending the Great Depression was declared unconstitutional by the Court. His threat to "pack" the Court—increase the number of justices to 15, appoint those six persons, and reverse decisions counter to his programs—met with popular opposition. Nixon launched his war on crime via his appointments of increasingly right-wing justices. Reagan’s advisers were said to have a litmus test—a potential nominee’s willingness to ban abortion through overturning of Roe v. Wade—to determine a potential justice’s worthiness.

   The same branch of government that began the end of segregation has brought us Citizens United.      

   Thomas Jefferson believed judges should be subject to "some practical & impartial control."  In the nineteenth century, state judges at the trial court level began to be elected.

   That brings us to the present day. Specifically in Marion County, the two "major" political parties each run half the number of candidates for the openings on the bench in a general election. This fall there will be 20 judges’ positions on the ballot. Ten will be nominated by the Republican Party and ten will be nominated by the Democratic Party.

   In other words, whomever wins the party primary elections for Marion Superior Court Judge has a virtual lock on the office. 

Despite the importance of the office of Superior Court Judge, most voters give little thought to the candidates on the ballot.

    Despite the importance of the office, most voters give little thought to the individual candidates. After all, there usually are so many names in one column. Before the primary election, the parties send out cards in the mail that name the candidates from their party who have been slated. Candidates are slated at a slating election earlier in the year.

   Years ago, Marion County’s slating convention consisted of delegates who were the elected precinct committee persons. Voters had put those party officials into office. The precinct committee persons considered the individual candidates for office—including judge—and voted. Thus was produced the party’s ballot for the general election.

   Over the years, the Marion County system was transformed. Fewer people chose to run for precinct committee person. If a precinct had no committee person, appointment was made by the party’s county chairman. The county slating convention came under the control of the party’s chairperson.

   Tomorrow on "Civil Discourse Now" we shall discuss the current slating system. Co-host Paul Ogden is running against the Republican Party slate for Superior Court Judge. Guest Greg Bowes is running against the Democratic Party slate for Superior Court Judge. We do the Show at 11 a.m. at Big Hat Books, 6510 Cornell Avenue, Broad Ripple. All are welcome.