On Thursday of last week, Indiana Supreme Court Justice Frank Sullivan delivered an excellent keynote address at the Muslim Alliance of Indiana's "Access to Justice" luncheon, which promoted MAI's modest means legal clinic. But Sullivan's remarks raised eyebrows.
Sullivan advocated a merit selection system for all judges, which was a gutsy move for a guy in a room full of elected Marion County judges.
If I put aside personal affection for many members of the local judiciary, what Justice Sullivan said makes terrific sense. We need a judiciary more insulated from political pressure than one mindful of getting slated by a handful of politically-active Democrats and Republicans, which is how Marion County picks its judges.
Two quick exhibits on that score.
I am absolutely certain that Democrat Judge Annie Christ-Garcia got it right when she found Democrat City-County Councilor Doris Minton McNeil not guilty. (I never believed the State would be able to establish an intentional touching of the officer required by the battery statute, as opposed to an intoxicated "falling into"). But would anybody believe that Judge Christ-Garcia never thought, even in passing, about the political repercussions of convicting versus not convicting? How could you not do so if you are human, in particular when you are part of a system that makes you play politics.
Doesn't every judge say, "Crap!" when a politically sensistive case hits the docket? And, because of judicial elections, won't some people assume an extremely capable and fair-minded Democrat judge put it in the tank for a Democrat city-county councilor because of fear of political retribution, regardless of what really happened?
I was not present for the Hamilton Avenue trial, and based on how strongly Judge Robert Altice (R) was recommended by the Indianapolis Bar Association (96% favorable), we should assume he also ruled correctly on the evidence. But can anybody say with certainty that Altice, a former prosecutor, never thought, even for an instant, about the political ramifications of entering a not guilty finding in Indianapolis' biggest murder case ever? That it never occurred to him that he could potentially doom his own electoral chances, but in addition, hand Democrats a shovel with which to bludgeon Carl Brizzi politically?
Are we supposed to also believe that Brizzi never envisioned Judge Altice thinking about the ramifications when he gave away the death penalty for nothing more than having a bench trial before Altice? Seriously, who does not believe Brizzi played handicapper and reached the conclusion that the political damage of foregoing the death penalty would be minor compared to the outcry if he didn't get a conviction. If Brizzi wasn't pretty confident that Judge Altice would convict, would he have made the deal? I've heard some say that Brizzi's stronger concern was that a CSI-obsessed jury would never convict without any physical evidence. That's a fair point. But what if Brizzi had been in, say, Democrat Grant Hawkins' court? Would he have still made the deal?
Even if Judge Christ-Garica, Judge Altice, and Prosecutor Brizzi could all prove politics never crossed their minds, and maybe they can, isn't there intrinsic harm from a system that has even lawyers wondering to what degree these kind of considerations might influence decision-making, even if only subconsciously, in close cases? And can't we objectively see how public skepticism about judicial decisions in political cases would be engendered by a slating system?
There is a reason federal judges have lifetime appointments. The Federalists knew it would be necessary to insulate judges from political pressure to ensure that they make accurate but politically unpopular decisions.
Some may correctly point out that even lifetime judicial appointees can play politics on the highest level, a la Bush v. Gore, but any step toward more judicial independence is still a positive step. If we switched to merit selection and retention elections every four years (instead of every six like with the Court of Appeals and Supreme Court), we would improve faith in our judicial decisions while giving the electorate a modicum of ability to bounce a judge for particularly egregious conduct.
Would this hurt the political parties by taking something valuable away from precinct committeepersons? Yes. They would have fewer offices to slate. But a merit-based system would take away equally, so there is no competitive disadvantage suffered by either party by support of this idea.
Lest someone in my own party suggest iPOPA is on a quest to oust sitting judges, I would respectfully submit that the only ones who should be nervous are the ones who know they wouldn't keep their offices if judged on their merits. In other words, you'll learn a lot listening to who is complaining about this post.
