Stafford: Institutional racism and judicial merit selection in Indiana

The Indiana General Assembly has always had problems with Indianapolis, Lake County and, to a lesser degree, the state’s other diverse population centers engaging in self-determination. Establishing merit selection systems to pick judges in these counties is a prime example.

I’m by no means the first to suggest that merit selection systems may produce biased results, and people far smarter than me make compelling arguments both ways. But as applied in Indiana, it’s hard to argue this is not a biased system. In a nutshell, in merit selection counties, a panel of lay people and lawyers chaired by a member of the Indiana Supreme Court interviews candidates to fill court vacancies and recommends those they deem best to the governor, who then makes the appointment. This takes the seating of judges out of the hands of voters.

The conventional wisdom in passing merit selection laws in Indiana has always been that voters in larger counties know too little about judicial races to make informed choices. So the Legislature passed one form or another of merit selection for Allen, Lake, Marion and St. Joseph counties.

Those happen to be Indiana’s four most diverse counties. But they are no longer the four largest by population. Sprawling suburban Hamilton County has surpassed St. Joe in population and is gaining fast on Allen. The Legislature therefore must enact merit selection to pick judges in far less diverse Hamilton County.

This argument was raised, humored, then discarded back in 2017 when lawmakers were working out the biased judicial selection setup we wound up with in Indianapolis. That’s harsh and conclusory, but also inescapable. Meaning no disrespect to those who serve on the Marion County Judicial Selection Committee or those who must submit to it, the implementation of this system disproportionately disenfranchises Black residents. Consider:

• By law, no more than half of all 36 Marion Superior Court judges may be of the same political party. So Republicans are effectively assured 18 judgeships through judicial selection, no matter what.

• Yet more than 64% of Marion County voters cast ballots for the Democratic candidate at the top of the ticket in the last federal election. And in the most recent primary election, Marion County Democrats outvoted Republicans by substantially more than a 2-1 margin.

• Black voters, who comprise more than a quarter of the electorate in Marion County, overwhelmingly vote Democratic. So a law effectively stipulating that half of the county’s judges be of a party they do not support harms their political representation in the local judiciary.

• If the partisan allocation of Marion County judges reflected the actual political makeup of voters rather than the desire of the Statehouse Republican supermajority, about 22 to 24 of Indianapolis’ judges would be Democrats rather than the statutory maximum of 18. If voters directly elected those judges, that number could be even greater.

It’s easy to understand why the Republican supermajority on Capitol Avenue rigged this biased system as they did. It was the only way they could hold power on the Indianapolis bench after the former corrupt system that did the same thing was ruled unconstitutional. It’s a matter of time before this newer system meets the same fate, and the sooner the better.

After the killing of George Floyd and the resulting protests, Indiana Chief Justice Loretta Rush in June joined the many statements of concern about race and the justice system. Courts, she wrote, “can be complicit in perpetuating the bias and inequity that are carved in our nation’s history. As Chief Justice of Indiana, I want to make known that we can and must do better.”

Couldn’t agree more. We can start by demanding lawmakers kill the partisan bias requirement in Marion County courts and enact judicial merit selection in Hamilton County. Equity demands it.•

• Dave Stafford — [email protected] — is editor of Indiana Lawyer. Opinions expressed are those of the author.