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June 19, 2014

Chief justice pick may not be immune to politics

INDIANAPOLIS — After two years of transition, the Indiana Supreme Court will soon be entering a new generation of leadership. And even though Gov. Mike Pence won’t make the appointment, experts say politics could influence the selection of a new chief justice.

Indiana Chief Justice Brent Dickson’s announcement last week that he was stepping aside as chief justice, along with the relative youth of most of the remaining justices, has created the possibility of another long-term leader like former Chief Justice Randall Shepard, who served as the state’s top judge for 25 years.

Three of the four remaining justices are in their 50s. Justices must retire at age 75. Dickson is 72. A state commission made up of three lawyers picked by their peers and three gubernatorial appointees, led by the sitting chief justice, will meet Aug. 6 to select a replacement for Dickson, who is staying on as an associate justice until he hits retirement age.

Their pick could affect life in Indiana for years. The Supreme Court interprets both the constitutionality of Indiana statutes and the intent of the legislators who wrote them. Their decisions can not only set legal precedent, but influence legislation. The chief justice leads the court and serves as its public face.

The selection process is designed to be immune from politics, but experts say it may not be as pure as it appears.

“The governor tends to get the people they want,” said David Orentlicher, a law professor at the Indiana University Robert H. McKinney School of Law and a former Democratic state representative.   

Three of the four eligible justices were appointed by former Gov. Mitch Daniels, a Republican. Those three are all in their 50s and, if chosen, could rival Shepard’s run as chief justice.

Justice Robert Rucker, the only African-American on the court and the only one appointed by a Democrat, is 67 and would be limited to eight years as chief justice if chosen.

Joel Schumm, an Indiana University law professor who follows the court, said he doesn’t expect Rucker to be interested in the position because he’s approaching the mandatory retirement age.

That leaves the younger justices, none of whom have been on the court longer than four years. Justice Steven David, 57, was appointed in October 2010. Justices Mark Massa, 53, and Loretta Rush, 56, the first female Supreme Court justice in Indiana, both were appointed in 2012.

All the justices declined to comment.

Choosing someone without longtime experience on the high court might seem unlikely, but Shepard had been on the court for only two years when he was selected.

The choice facing the commission that will select the new chief justice could be fairly simple if the justices, who will be separately interviewed Aug. 6, endorse one of their own — as happened when Dickson was selected two years ago. It could be another thing altogether if there’s competition for the job.

Andy Downs, director of the Mike Downs Center for Indiana Politics at Indiana University Purdue University Fort Wayne, acknowledged that the process is supposed to be politically pure, but said that’s difficult to accomplish.

“There are checks and balances in order to minimize it, but politics are always going to play a role in these things,” Downs said.

Shepard, the former chief justice, agreed — to a point.

“The constitution has created a process that constrains political effects, but recognizes that the people in political office — the governor, for instance — are the people’s voice,” he said in a phone interview.

“No one would contend that they’re completely immune from the political process, and indeed, you wouldn’t want them to be,” Shepard added.

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