Several days ago, Jonathan Martin reported in Politico that “Indiana Gov. Mitch Daniels has been holding a series of private dinners with top Republican business leaders, policy hands and donors from around the country since this spring, an indication that he’s thinking more seriously about a presidential bid than he publicly lets on.” I assume Governor Daniels used those meetings to promote the brand he has worked hard to develop: pragmatic budget hawk whose mastery of technocratic data sets him apart from the usual public official.

That brand has been on display in several contexts over the last several years. When a National Journal interviewer asked him about the economic stimulus plan, he did not discuss the size and reach of the national government, or even offer the obligatory nod to the idea of federalism. “Yes, it’s going to be a help,” he said of the stimulus. “As a governor, I don’t have a vote; my job was to use whatever Washington produced to the best advantage of our state, and that’s what we’re spending all our time on, not criticizing anybody.” If his realism wasn’t clear enough, in his recent Wall Street Journal op-ed, he explained that “grown-ups make trade-offs.” On social issues, he has called for a “truce.”

Most of this is well known by the sort of people who care about officials with presidential ambitions. But there are other aspects of his record that are hidden, areas where he has benefited from the fact that his record hasn’t been scrutinized as closely as it will be if he makes a serious run for the Oval Office.

For instance, he is an outspoken supporter of Indiana’s version of the Missouri Plan, the so-called “merit” selection system for selecting judges that requires the governor to select from a panel of judicial nominees chosen by a commission dominated by lawyers. (I prefer to call it the “merit deception” plan.) In 2009, after overwhelming majorities of the Indiana General Assembly passed legislation scrapping that system in northern Indiana’s St. Joseph County, Governor Daniels vetoed the legislation. But apparently it wasn’t enough to veto legislation that conservative legislators in other states would have been thrilled to pass. In his veto message, Governor Daniels had to praise the system:

The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County.

Interesting talking points. They sound remarkably similar to the talking points the Left’s legal arm — through groups like the ABA and the Soros-funded Justice at Stake — has been using to attack conservatives who support Missouri Plan reforms in other states. If Daniels had been wearing his wonk hat that day, he would have realized that he was praising a form of judicial selection designed by Progressive Era lawyers who wanted “experts” to engineer every aspect of American life. By vetoing that legislation, and using those talking points, he carried water for a dangerous and extremely well-funded coalition of special-interest groups who would like our courts to be captured by liberal judicial activists.

As my colleague Carrie Severino has explained — and as Vanderbilt law professor Brian Fitzpatrick has persuasively demonstrated in academic research — “there are good reasons to be concerned that judges nominated by lawyer-dominated committees will ultimately be well to the ideological left of the electorate.” It is deeply troubling that Daniels did not intuitively understand that, and even more troubling that he did not come to understand it after having to grapple with the decision of whether to veto legislation on the subject.

Micah Clark, executive director of the American Family Association of Indiana, told me, “It is unbelievable that he would take such a strong stand for a system of picking judges that is unaccountable to the people. Daniels clearly thinks his political future depends on keeping peace with liberals on social issues and judges.” Ryan McCann of the Indiana Family Institute, the Focus on the Family affiliate, added that he hopes Daniels draws a line in the sand with the legal elites who dominate judicial selection. ”With judicial activism running rampant across the country, I hope Governor Daniels will lead the Indiana General Assembly towards reforming the way in which judges on the Indiana Court of Appeals and the Indiana Supreme Court are selected. Allowing an unelected panel dominated by trial lawyers to wield so much power over our judicial system is not a recipe for protecting our state from those who seek to legislate from the bench.”

Well, the governor’s chickens are coming home to roost. Several weeks ago, I noted that conservatives would be watching as Governor Daniels pondered the three nominees sent to him by the state’s judicial nominating commission to fill an Indiana Supreme Court vacancy. Though there were three nominees, two have received the bulk of the attention: Judge Robyn Moberly, the only female nominated, and Judge Steven David, whom Daniels appointed to the Indiana Supreme Court on Friday.

Judge Moberly described her qualifications by stating “I bring a whole different set of life experiences to the court. . . . I think that’s what makes really great decisions. Through collaboration, discussion and debate, different life experiences come together and inform us all on what the best decision is.” In another exchange, she “reiterated her concern for ‘compassionate justice’ and noted it could continue to be fulfilled on the Court.”

Judge David is most well known for having served as chief defense counsel for detainees at Guantanamo Bay. In testimony before the House Armed Services Committee in 2008, David praised the majority opinion in Boumediene v. Bush and said “the most important thing that Boumediene held is something that I always thought was obvious . . . that in America, there are no law free zones.” There has also been some controversy relating to a death-penalty case wherein he ruled that a defendant who had been convicted and twice sentenced to death for killing a police officer could not receive the death penalty because of long delays in his case. And, since he was appointed, my attention has been drawn to the bio released by the governor’s office, which says that David is a member of the American Judicature Society. AJS is one of the leading institutional proponents of “merit” selection, and beneficiary of more than $1 million in contributions from George Soros’s Open Society Institute since 2000.

Could David end up being a great justice? Perhaps; I’ll leave that to those with more information and expertise in the relevant areas of the law to decide. But I can think of a few questions Daniels should be asking himself:

● Does he legitimately believe the nominating commission sent him the best nominees, in terms of credentials or judicial philosophy?

● Would he have appointed David if he could have chosen any lawyer in the state of Indiana?

● Given the choice, would the people of Indiana elect Judge David, knowing some of the concerns that have been raised about his record?

● Is Judge David the best we can do?

If the answer to any of these questions is no, why wouldn’t he call for reforming the state’s awful system for appointing judges? Is it because this is one of those areas where grown-ups should be open to truces and trade-offs? We don’t need any trade-offs or a truce with trial lawyers and Soros-funded activists on judges any more than we need to have a truce with the Left on social issues, economic issues, or any other issues.

— Gary Marx is executive director of the Judicial Crisis Network.