Bench Memos

In Defense of Garnett’s Defense of Daniels

Carrie Severino, whose work I admire and appreciate, “respectfully dissents” from my recent defense of my governor, Mitch Daniels, and specifically from my suggestion that his “record on judicial appointments” should be a comfort to those who have been troubled by his “truce” comments. With equal respect, I have to say that I don’t think that Carrie’s discussion of the “Missouri Plan” in Indiana undermines my “defense” at all.

One strand of Carrie’s dissent has to do with Indiana’s version of the so-called Missouri Plan for selecting judges. To be clear: I agree entirely with Carrie (and with my friends Mia Reini and Jonathan Watson and others) that the Missouri Plan is bad policy. But, unfortunately, the Missouri Plan is part of Indiana’s constitution. Is Daniels really unworthy of conservatives’ consideration — is his understanding of the importance of judicial nominations really undermined — because he has not campaigned for a constitutional amendment, or because he vetoed a bill in 2009 that was more complicated than Carrie’s dissent suggests? (It was, in fact, little more than an effort by liberal Democrats in northern Indiana to secure reliably liberal judicial candidates in that part of the state and to fund an unnecessary and expensive new court.) I don’t think so.

Next, Carrie suggests that the governor’s eventual nomination of Steven David somehow counts against his judicial-conservative bona fides. Again, remember that the menu of options from which Daniels could choose was constitutionally limited. Perhaps now-Justice David’s statement about Boumediene was “trite,” but more important — and more relevant to the debate about the real significance of Daniels’ (unhelpful, I admit) use of the word “truce” — is the fact that Indiana Right to Life praised the nomination, saying that “Governor Daniels is to be applauded for taking this opportunity to steer the Indiana Supreme Court back to its proper role in strictly interpreting the Indiana Constitution. . . . We believe that Judge Steven David will serve honorably on the Indiana Supreme Court and are pleased that a judge with a conservative judicial philosophy will replace a justice who was unrestrained in stretching the Indiana Constitution to embrace his personal views on abortion.”

When he nominated David, Governor Daniels expressed his approval for David’s “clear[] expression of commitment to proper restraint in jurisprudence, and to deep respect for the boundaries of judicial decision-making. He will,” Daniels said, “be a judge who interprets rather than invents our laws.” This hardly sounds like a public servant who, in Carrie’s words, is “simply wrong” on judges. Like a lot of what Daniels says — about education, fiscal responsibility, criminal-justice reform, and more — it sounds quite right.

— Richard W. Garnett is a professor of law and associate dean at the Notre Dame Law School.


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