Bench Memos

Re: Mitch Daniels and the Missouri Plan

Rick, I stand by my assertion that Governor Daniels dropped the ball on the most important judicial issue he faced as governor of Indiana when he stated that the Missouri Plan for judicial selection in his state “is a model to be emulated, not discarded. It is not broken; it requires no repair.” Until he retracts that statement or issues a straightforward condemnation of Indiana’s selection method, I will take him at his word.

1. If the reform legislation Daniels vetoed was “little more” than a ploy by liberal Democrats, his veto statement should have said so. Instead, it went the extra mile to say that the Missouri Plan “is a model to be emulated, not discarded. It is not broken; it requires no repair.” By adopting rhetoric that could have been drafted by Justice Sandra Day O’Connor or one of several Soros-funded groups, he indicated willingness to align himself with the liberal legal establishment.

2. I agree that his “menu of options” in his latest supreme court vacancy were limited, and I made that clear. But that is true of every appellate judicial appointment during his tenure as governor. So is it really fair to applaud “his record on judicial appointments,” as you did in your first post? Isn’t that like giving the U.S. Senate credit for Justices Roberts and Alito, even though they merely get to approve or disapprove, much like a governor in a Missouri Plan state?

3. I never discounted the possibility that Judge David might “serve honorably on the Indiana Supreme Court.” My point is that I find it very hard to believe Governor Daniels — a professed and practicing conservative on so many issues — would have nominated someone like David if the process had given him legitimate options and the ability to vet his own nominees — a position with which you seem to agree when you say “remember the menu of options from which Daniels could choose was constitutionally limited.”

4. His menu of options on the Missouri Plan issue was limited only by his political calculations. The Missouri Plan is constitutional law in most Missouri Plan states, including Missouri, Alaska, Iowa, and Kansas. Where other Republican governors have seen a method worth criticizing and reforming, he saw a method worth emulating. 

5. I wouldn’t disqualify him as a judicial conservative for not making a constitutional amendment a central part of his agenda, although that would have shown real leadership and interest in improving the state’s judiciary. But by his own words he disqualified every single lesser alternative. Daniels didn’t just accept a status quo that, as you acknowledge, has serious problems — he praised it. I would have preferred a truce.


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