Schedule set to fill upcoming Indiana Supreme Court vacancy

Anyone who wants to be the next Indiana Supreme Court justice has until the end of June to apply for upcoming vacancy on the state’s highest court.

The Indiana Supreme Court’s Judicial Nominating Commission is accepting applications until June 30 for the appellate post, which is being vacated once Justice Theodore Boehm retires Sept. 30. He announced his decision May 25.

In the initial days after his announcement, the Indiana legal community has already started speculating who could be the next state justice, and much discussion has focused on whether that person should come from the judiciary and how likely it is that a woman would be named.

Indiana and Idaho are currently the only two states without a female justice, while Justice Boehm is one of three sitting justices who don’t have any judicial experience before joining Indiana’s high court.

Though there are names being batted about and formulas for who might be the state’s 106th justice, one common theme is clear: that person will have much to live up to in succeeding Justice Boehm.

“Those are large shoes to fill,” said Indianapolis attorney Jason Stephenson at Barnes & Thornburg, one of two authors of an annual review of the state’s high court. “His replacement needs to be ready to draft a lot of opinions, (because) over the years that I’ve participated in this article Justice Boehm has often written the majority of the court’s opinions.”

With the polarization between the federal and state governments, Stephenson said the appointee will have to be able to listen to both sides as Justice Boehm has done and not exhibit a knee-jerk reaction. This is even more crucial in the current political climate so that the end result is viewed as clearly just and not politically driven.

Many key players in the legal community say the next justice should be a woman, but they’re quick to note that gender is just one consideration and any appointee must be qualified for the post. Justice Boehm is one of those voices, as are Chief Justice Randall T. Shepard and former Justice Myra Selby, who was the state’s first and only female member of the court in the mid ’90s.

“I think it’s definitely something he should – and I expect will – take into consideration,” Justice Boehm said about the governor’s option in name a female justice. “It may not be the controlling factor, but it certainly should be something that is in everybody’s thoughts.”

Any court must reflect all kinds of diversity, from gender and race to geography, backgrounds, and skill sets, Justice Boehm said. In order to increase the court’s diversity on all those fronts, the retiring justice said this could be a time to again think about expanding the court from five members to as many as eight, as the state Constitution allows. The topic first surfaced in the late 1980s and again the late ’90s, but it hasn’t come up seriously since then. He won’t be the one to raise it but said it might be a concept for the legislature to start considering.

“It wouldn’t be a bad idea,” Justice Boehm said.

Indianapolis attorney and Indiana University School of Law – Indianapolis professor Joel Schumm, who clerked for Justice Boehm in the late ’90s, said he hopes the new justice is a woman – particularly because half of all attorneys graduating law school are females and the court doesn’t reflect that trend.

Indiana Court of Appeals Judge Margret Robb, one of five women on the intermediate appellate bench, said it’s an important issue.

“In terms of women on the court, that is an important consideration, but my overall hope is that the person will have requisite respect for the other branches of government, the law, and the Constitution,” said Judge Robb, who’s been a board member for the National Association of Women’s Judges.

Selby has echoed those thoughts, telling Indiana Lawyer in the past that the high court should reflect society and that having a female perspective is important and warrants discussion along with all the factors.

When Selby left the court, the legal community clamored for another female justice and then called for an expansion after Justice Robert Rucker was elevated from the Court of Appeals to take her spot. At the time, Chief Justice Shepard predicted that the next justice would be a woman – though he didn’t know at what point in the future that might happen.

The time could be now.

But ultimately, that depends on who applies, who the seven-member Judicial Nominating Commission chooses as finalists, and which person Gov. Mitch Daniels picks for the court.

Most of the process is in the hands of the nominating commission, which the chief justice chairs and consists of three attorneys chosen by their colleagues and three non-lawyers appointed by the governor.

Commission members will conduct public interviews with applicants July 6 and 7 in Indianapolis, and then a second round of interviews with semi-finalists will take place July 30. The commission will deliberate in executive session following those second interviews and then vote in a public session on the names of the three finalists that will be forwarded to Gov. Daniels for consideration.

Though Gov. Daniels has appointed two judges in recent years to the Indiana Court of Appeals, this will be his first chance to name a Supreme Court justice and it’s the first time since 1986 that a Republican governor will have the chance to fill a post on that bench.

By law, the governor has 60 days to select a new justice from the time he receives the nomination list. If he fails to do so, the chief justice or acting chief justice would make the appointment from the same list.

A candidate must be an Indiana resident and an Indiana bar member for at least 10 years, or an Indiana judge for at least five years. The annual salary and allowances for a Supreme Court justice is $154,328, according to the court’s public information officer Kathryn Dolan.

Whoever is chosen will serve until he or she faces a retention vote in the next general election at least two years following their appointment, then it would be every 10 years following that. Appellate judges in Indiana are only allowed to serve on the bench until the mandatory retirement age of 75, which was one of the reasons why Justice Boehm – who turns 72 in September – decided to retire now.

The last time a new justice search happened because of Selby’s return to private practice in 1999, the commission received 25 applications – significantly more than the 10 who’d applied in 1994 when she was eventually chosen by then-Gov. Evan Bayh.

Those interested in applying may contact counsel Adrienne Meiring with the Indiana Judicial Nominating Commission at (317) 232-4706. Applications are posted on the state judiciary’s website at http://www.in.gov/judiciary/jud-qual/justice.html.

As far as planning for a Supreme Court seat, Justice Boehm said it mostly comes down to someone being in the right place at the right time – as he said he was.

“It’s about who fits the makeup of the court, is someone the commission wants, the governor wants … what are the odds of being in the right place?” he said. “As far as planning … I’m not sure there’s a way to. If your career plan is to be an appellate judge, then your financial plan should be to win the lottery.”•