Bench Memos

In Re: Garnett’s Defense of Governor Daniels

Last week, Rick Garnett defended Governor Mitch Daniels after Yuval Levin took the governor to task. I’m not in a position to comment on most of Governor Daniels’s record, or whether the charges that Daniels would be a “Trucer” on life and family issues hold water. But I have watched his handling of judicial issues, so I can speak to Rick’s assessment that “if we look at Governor Daniels’s record — in particular, his record on judicial appointments — we don’t find any reason to think that ‘truce’ means for him ‘caving on the merits’ or ‘downgrading the seriousness of the issue.’”

I respectfully dissent. 

The single most important judicial issue in Indiana is the ongoing debate over the state’s method for appointing appellate judges. It’s not much of a debate, actually, thanks in part to Daniels. Indiana uses a form of the Missouri Plan, the commission-based method for choosing judges that was designed by Progressive Era lawyers to put “experts” in charge of judicial selection. The “experts,” of course, are lawyers. When the issue was in front of Daniels he took the worst possible approach. In 2009, overwhelming majorities of the Indiana General Assembly (88–3 in the House, 35–15 in the Senate) approved legislation to kill that method in parts of Indiana. Governor Daniels vetoed it and said:

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.

Then, when Indiana had a supreme court vacancy to fill, he failed to say a single word about the state’s flawed judicial-selection process and dutifully appointed a nominee sent to him by the state’s nominating commission.

The Missouri Plan suffers from design defects that would raise red flags for anyone who has carefully considered the political philosophy on display in the the Federalist Papers. But, aside from these defects, wherever it has been studied in practice it has been found to serve as a mechanism by which trial lawyers and left-leaning special interests can capture the state’s judicial branch. That’s no accident. The framers of the Missouri Plan wanted the lawyer class, which leans to the left, to dominate our courts and our legal culture. 

This is how the people of Iowa ended up with a supreme court that unanimously ruled in favor of gay marriage, the people of Missouri with a supreme court that cited ” the views of the international community” to invalidate a death sentence, the people of Kansas with a supreme court that has repeatedly injected itself into the state’s budget process, and the people of Alaska with a court that invalidated the state’s reasonable, pro-life Parental Consent Act. In all of these cases, the state’s high court was well to the left of its citizenry. That’s one reason why the method is under assault by conservatives in all four of those states, with Republican governors Terry Branstad, Matt Blunt, Sam Brownback, and Sarah Palin criticizing it at various points in recent history.

It’s not just Republican governors who have criticized the Missouri Plan method. Conservative scholars and judicial-selection experts have been even more articulate and rigorous in their criticism. See here for a study by Vanderbilt law prof Brian Fitzpatrick describing how the Missouri Plan has dramatically tilted the composition of the courts in several states to the left, or here for a national overview by Kansas law prof Steve Ware. Shortly after the most recent Indiana Supreme Court vacancy was filled, Hoosiers Jonathan Watson and Mia Reini explained that “the Missouri Plan used in Indiana departs greatly from these two more democratic methods [the ‘federal model’ and contested elections], in that the Judicial Nominating Commission has no accountability to the people of Indiana.”

Rick’s pro-life credentials are beyond dispute, and I assume he is on solid ground when he defends Daniels from the charge that he isn’t serious about the sanctity of life or the centrality of the family. But Ware, Fitzpatrick, and Reini are conservatives with pretty solid credentials in this particular field. Ware was one of the first to take a look at the Missouri Plan from a national perspective, Fitzpatrick is the recipient of the Federalist Society’s prestigious Bator Award and a frequent writer/commentator on this subject, and Reini is the former head of the Federalist Society’s State Courts division, which has played a leading role in the effort to promote research and debate on judicial selection in the states.  And that’s not even counting uber-litigator Jim Bopp, a native of Indiana who has criticized the Missouri Plan and challenged it in several federal courts. In short, you will have a hard time finding people who know more about state judicial issues than those four, and they all agree that the Missouri Plan is a Progressive Era relic that should be discarded, not “emulated.” 

I also question whether it is fair to credit Daniels with a great track record of judicial appointments, if that’s what Rick is doing.

Anyone who worked for Daniels during the process of filling the most recent Indiana Supreme Court vacancy probably would have told you that the bulk of the meaningful discretion over appellate appointments in Indiana belongs to a commission over which the governor has very little control. Under the Indiana Constitution, vacancies “in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission.” That’s just one of the design defects I referred to earlier — the candidates for judicial office are chosen by a commission the majority of whose members are unaccountable to the public, dramatically diminishing the role of any democratically elected official in the process. More anecdotal evidence could probably be rounded up by asking governors Branstad, Blunt, Brownback, and Palin whether they want to be credited with the supreme court appointments made during their terms as governors in Missouri Plan states. 

But if Daniels does want to take credit for the most recent Supreme Court appointment, I look forward to hearing him explain whether, in the absence of this flawed method, he would have appointed Steven David. David is a former chief defense counsel for detainees at Guantanamo Bay who praised the majority opinion in Boumediene v. Bush with this trite quote: “The most important thing that Boumediene held is something that I always thought was obvious . . . that in America, there are no law-free zones.” Or maybe he could explain why the official Steven David bio released by his office announced the fact that David is a member of the American Judicature Society, the leading institutional proponent of the Missouri Plan, and beneficiary of more than $1 million in contributions from George Soros’s Open Society Institute since 2000. Daniels may well have chosen the least bad option presented to him by the commission, but that cannot excuse him supporting a system that ties the governor’s hands to such an extent that he can only choose the least offensive of three liberal nominees.

When Daniels had an opportunity to roll back Indiana’s Missouri Plan, he vetoed it. When a great opportunity to criticize the process and lend a hand in the national movement to reform the Missouri Plan presented itself during Indiana’s most recent supreme court vacancy, he remained silent.  Whatever his other conservative credentials, he is simply wrong on judges. This may be ignorance or indifference on his part, but it certainly wasn’t for lack evidence, which any number of groups or experts could have given him if he had taken the issue more seriously.

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