Mitch Daniels and the Judiciary

My post yesterday on Mitch Daniels stirred up what I regard as a healthy, informative, and highly civil debate. Those commenting addressed my argument concerning Daniels’ proposal that there be a “truce” on the social issues and what I had to say concerning his failure to say a single substantial word to date regarding our strategic situation and the direction of American foreign policy.

No one took up my third point, however, and I think that it deserves careful attention – so I will return to it and invite comment. On Friday, as I indicated in my earlier post, Jennifer Rubin posed this question: What about the Supreme Court? What sort of judges would Daniels be apt to appoint?

And what Rubin had to report with regard to Daniels’ record in appointing judges in Indiana was disturbing in the extreme. Here is what  Carrie Severino had to tell us:

The single most important judicial issue in Indiana is the ongoing debate over the state’s method for appointing appellate judges. It’s not much of a debate, actually, thanks in part to Daniels. Indiana uses a form of the Missouri Plan, the commission-based method for choosing judges that was designed by Progressive Era lawyers to put “experts” in charge of judicial selection. The “experts,” of course, are lawyers. When the issue was in front of Daniels, he took the worst possible approach. In 2009, overwhelming majorities of the Indiana General Assembly (88-3 in the House, 35-15 in the Senate) approved legislation to kill that method in parts of Indiana. Governor Daniels vetoed it. …

Then, when Indiana had a supreme court vacancy to fill, he failed to say a single word about the state’s flawed judicial-selection process and dutifully appointed a nominee sent to him by the state’s nominating commission.

Who was that nominee? None other than Steven H. David. And who is David? Here is what Severino reports:

David is a former chief defense counsel for detainees at Guantanamo Bay who praised the majority opinion in Boumediene v. Bush with this trite quote: “The most important thing that Boumediene held is something that I always thought was obvious … that in America, there are no law-free zones.” Or maybe he could explain why the official Steven David bio released by his office announced the fact that David is a member of the American Judicature Society, the leading institutional proponent of the Missouri Plan, and beneficiary of more than $1 million in contributions from George Soros’s Open Society Institute since 2000. Daniels may well have chosen the least bad option presented to him by the commission, but that cannot excuse him supporting a system that ties the governor’s hands to such an extent that he can only choose the least offensive of three liberal nominees.

I would suggest – yesterday I did suggest – that this set of events ought to cause conservatives to pause and rethink. There is, as Rubin put it, “danger in electing a conservative who is focused on only one big thing; the other side winds up winning many important fights.”

We know that Daniels is a fiscal hawk, and we all admire him for his perseverance and resoluteness in that regard. Yesterday, I asked whether that is all that he is. He seems on occasion to have a way of standing in the way of very good things – such as bringing the Missouri Plan to an end, such as Right-to-Work. None of the recent Republican Presidents – not Reagan, not either Bush – turned out to be as good as he should have been when it came to appointments to the Supreme Court. Would Daniels be any better? It looks to me as if he would be much, much worse. Is there anyone within the Ricochet community who is willing to defend Daniels on this ground?

One final observation. Mitch Daniels is a member of the Ricochet community. It is in his power to respond to the criticism that I have made, and I urge him to do so. I would prefer, however, that he prove my misgivings entirely unfounded by articulating a stance with regard to our strategic situation and by acknowledging that the “truce” he proposed was a very bad idea.

Running for the Presidency can and ought to be educational. Among other things, it tests whether a candidate can rethink. I do believe that Mitch Daniels needs to do some rethinking, and I hope that Ricochet can contribute to this process. At this point, I myself look upon him as a potential prodigal son.

  1. KC Mulville
    Paul A. Rahe:

    No one took up my third point, however, [..] What about the Supreme Court? What sort of judges would Daniels be apt to appoint?

    Ooops. I thought I did. Forgive my oblique way of addressing that question.

    As a conservative, I want originalists on the bench. I hope that a President Daniels appoints originalists. That, I believe, would return the discussion of social issues to the legislature, where I think they belong. 

    Based on the culture truce comment, and taking the report at its word that Daniels’ accepts the Missouri-compromise method, I have little hope that Daniels will appoint originalists. Thus my concern.

    And I agree: Mitch Daniels is a terrific politician. Very impressive. But I set great store by the need to appoint originalists. 

  2. Paul A. Rahe
    C
    KC Mulville

    Paul A. Rahe:

    No one took up my third point, however, [..] What about the Supreme Court? What sort of judges would Daniels be apt to appoint?

    Ooops. I thought I did. Forgive my oblique way of addressing that question.

    As a conservative, I want originalists on the bench. I hope that a President Daniels appoints originalists. That, I believe, would return the discussion of social issues to the legislature, where I think they belong. 

    Based on the culture truce comment, and taking the report at its word that Daniels’ accepts the Missouri-compromise method, I have little hope that Daniels will appoint originalists. Thus my concern.

    And I agree: Mitch Daniels is a terrific politician. Very impressive. But I set great store by the need to appoint originalists.  · Feb 24 at 8:14am

    I agree. I also think that the social questions should be returned to the states. Moral police is not a federal responsibility except within certain jurisdictions (DC, etc.).

  3. Keith Preston
    Paul A. RaheI agree. I also think that the social questions should be returned to the states. Moral police is not a federal responsibility except within certain jurisdictions (DC, etc.). · Feb 24 at 8:20am

    That is key.  When my US Government classes discuss the big issues, we don’t talk about whether gay marriage/abortion, etc. is right or wrong.  We talk about the proper constitutional way to do things.  It’s for the states to decide, NOT 9 seniors in black robes.  It certainly was never designed to work that way…and, of course, it DOESN’T work.  

  4. tabula rasa

    Caveat:  I am an attorney, but one who believes passionately in tort reform and who believes our Constitution is not to be trifled with and bent out of shape to serve the latest  exercise in expediency (I haven’t noticed a single “penumbra” floating around it).

    One of the most important executive functions is the choosing of judges (who, in most states and in Congress, are subject to confirmation) [It's a classic case of the separation of powers :  the executive chooses who will serve in the judiciary and the legislative branch decides whether to confirm].  To the extent Daniels has acceded to passing his power to a third-party group of “expert” lawyers, I agree with Professor Rahe that this is a serious issue that goes to the breadth of Daniels’ thinking, and raises the question of how serious he would be in choosing conservative judges for the Supreme Court (this is particularly important for Republicans who have picked some who have become the worst liberal activists: e.g. Blackmun and Stevens).

    Yet I’ve not written Daniels off.  But he must demonstate a broader philosophy than just fiscal hawk (in itself, a great thing) to get my vote.

  5. Sisyphus

    I did not address it because there is a natural disconnect given the Governor’s actions to date. He has no history with a nominating process comparable to the Supreme Court process, and so has no directly applicable experience to judge from.

    I do not agree with the “expert” selection method. The “experts” are not elected by the people, and therefore not necessarily representative of community values and mores or subject to correction by election. The entire process represents a progressivist tendency to distrust democratic institutions, allowing self-selected, ambitious men to substitute their judgment for the judgment of elected representatives. Yes, governors hold the veto to have their way in some things, but this veto and the Right to Work Law veto both frustrated the will of large majorities in his assembly to protect progressive reforms of dubious merit.

    Progressive is a dirty word at this stage of American history for a reason. “Experts” are usually elitests, now looking forward to running death panels and auto companies. 

    I am with KC, nominating originalists is as close as we can come to legitimacy and predictability under the Constitution.

  6. raycon and lindacon

    I’ve already placed myself in the negative camp re: Mitch Daniels.  The court appointments issue is way high on the reasons for that.  For the most part, I agree with your position that the states legislature should be addressing the cultural issues.  That being said, we still have to deal with two problems. 

    Assuming that it is settled that the Bill of Rights applies equally to the states, the Right to Life issue must be taken as a Federal responsibility.  The Supremes, in 1973, chose to weigh in on that one, and only the present Supremes can undo that disastrous ruling.  Think; Dred Scott.  Mitch seems not to get that.

    The “Full Faith and Credit” clause carries with it similar problems.  Very few states rights issues carry the degree of unpleasantness as does gay and polygamous marriage.  I would be content if, lets say, California or Utah were to take a stand in favor of one or the other.  To what extent should the people of Colorado be expected to cooperate in, lets say divorces, property settlements or birth/death decisions?   None whatever would be the only realistic expectation, which flies in the face of FF&C.

  7. Pilgrim

    Despite having been “designed by Progressive Era lawyers” the Missouri Plan is generally regarded in legal circles as an improvement over popular election or Tammany-style judicial appointments in selection of competent, honest appellate jurists.  The American Judicature Society is doubtless left-leaning, but its mission is not ideological per se. From its website:

    The [Indiana] commission on judicial qualifications also serves as the judicial nominating commission, which recruits and interviews applicants for vacancies on the supreme court, court of appeals, and tax court, and forwards to the governor the names of three nominees for each position. The nominating commission also selects the chief justice of the supreme court. The commission consists of seven members: the chief justice, who serves as chair; one lawyer elected from each of the three geographic court of appeals districts by bar members in that district; and one nonlawyer appointed by the governor from each geographic court of appeals district. Commission members serve three-year terms and may not be reappointed or reelected.

    The MP is also the source of the “Shall Judge xxxx be retained” form of periodic judicial election, a compromise between the life-time appointments in the federal system and partisan elections

  8. Pseudodionysius

    Paul,

    I’m going to assume then that you side with Robbie George on his Lincolnesque views on the role of the federal judiciary in deciding constitutional issues as seen in Lincoln’s reaction to Dred Scott?

    His fear was not that judges would sometimes err in their constitutional rulings. Given human fallibility, that is inevitable and unremarkable. His fear, rather, was that judges are capable of behaving unconstitutionally, just as other officials are capable of behaving unconstitutionally, by exceeding the authority granted to them under the Constitution and thereby usurping the authority allocated to other officials in a delicate system of checks and balances. Indeed, Lincoln believed that judicial violations of the Constitution were in certain respects graver matters than the violations of elected officials.

    Note: Embedded link is to a First Things article outside the firewall.

  9. Paul A. Rahe
    C
    Pseudodionysius: Paul,

    I’m going to assume then that you side with Robbie George on his Lincolnesque views on the role of the federal judiciary in deciding constitutional issues as seen in Lincoln’s reaction to Dred Scott?

    His fear was not that judges would sometimes err in their constitutional rulings. Given human fallibility, that is inevitable and unremarkable. His fear, rather, was that judges are capable of behaving unconstitutionally, just as other officials are capable of behaving unconstitutionally, by exceeding the authority granted to them under the Constitution and thereby usurping the authority allocated to other officials in a delicate system of checks and balances. Indeed, Lincoln believed that judicial violations of the Constitution were in certain respects graver matters than the violations of elected officials. · Feb 24 at 9:31am

    I do agree.

  10. AmishDude
    Pilgrim:  the Missouri Plan is generally regarded in legal circles as an improvement over popular election or Tammany-style judicial appointments in selection of competent, honest appellate jurists. Edited on Feb 24 at 09:20 am

    First, I think assuming that a jurist can be honest is a mistake. They did go to law school for a reason.  It is an axiom of conservatism that people will persue their own interests (hence the separation of powers) and to assume that a lawyer won’t do that is laughably absurd.

    Second, it is unconstitutional. By having the bar association have any formal role in the selection process means that an unelected guild that has no accountability toward the electorate at all is creating a third of state government. This is not a republican form of government, as guaranteed by the Constitution. Of course “legal circles” would love it!

    I would even argue that being forced to be a member of the bar is unconstitutional.  We are not a government of the lawyers, by the lawyers and for the lawyers.  (Well, we are, but we shouldn’t be.)

    Third, where is the evidence that such jurists are better?

  11. Brian Watt

    Disturbing. Disheartening. He’s not going to have a Dukakis moment and ride around in a tank with a helmet on, is he? 

    Sorry, but the more I learn the less I am impressed. The Republican party controls the state senate and the assembly in Indiana and Daniels can’t even embarrass or register any ire that errant Democrats to return to the capital? The issue is Right to Work, isn’t it? Not Right NOT to Work. Indiana is a Republican state! The majority of voters are behind him and all he offers is muted and timid reminders that these Dems listen to their conscience? Really? That’s it? That’s the best that Republicans and taxpayers in Indiana can expect? If so, perhaps Governor Daniels should stay where he is and sort out Indiana’s challenging legislative (or vacant legislative) problems before he assumes even more complex issues on the national stage. Again, likable fellow…but want someone tougher for President. Suggest that the governor start watching Allen West videos.

  12. Standfast

     One reason I wrote off Daniels so easy from your post was because of the issue of appointing judges in Indiana. I remembered the words of Dwight D. Eisenhour.  When asked if he had made any mistakes duirng his presidency, he  responded by saying two.  And both were sitting on the Supreme Court.

    We need leaders who will carefully vet potential judges at all levels. 

  13. Palaeologus

    I find Richard Garnett’s response to Carrie Severino pretty convincing. Here’s a portion:

    I agree entirely with Carrie (and with my friends Mia Reini and Jonathan Watson and others) that the Missouri Plan is bad policy. But, unfortunately, the Missouri Plan is part of Indiana’s constitution. Is Daniels really unworthy of conservatives’ consideration — is his understanding of the importance of judicial nominations really undermined — because he has not campaigned for a constitutional amendment, or because he vetoed a bill in 2009 that was more complicated than Carrie’s dissent suggests? (It was, in fact, little more than an effort by liberal Democrats in northern Indiana to secure reliably liberal judicial candidates in that part of the state and to fund an unnecessary and expensive new court.) I don’t think so.

    What’s your take on it Professor?

  14. Pilgrim

     AmishDude #10  We have two issues going.  I ran out of words before I could state that I believe the Missouri Plan to be a sound and defensible method of selecting state appellate court judges.  Therefore I wouldn’t hold Governor Daniel’s veto against him.

    The 2nd issue, the merits of the MP itself was the thrust of your post and the basis of mine. You said:

    First, I think assuming that a jurist can be honest is a mistake….  I don’t believe that you would try to defend that proposition on reconsideration.

    Second, it is unconstitutional.  “unconsititutional” means something other than “I disagree” The only court on the federal level that has any specific constitutional basis is SCOTUS. The selection to the Article III courts can be established in any manner Congress enacts.  State constitutions vary but the MP has been upheld to the extent it has been challenged.

    If you read the dry details of the commission you see that 3 of 7 members are non-lawyers so they have a significant voice.

    There isn’t enough space (or interest, probably) to discuss the evidence that the MP produces a better judiciary but it is abundant.. 

  15. Paul A. Rahe
    C
    Palaeologus: I find Richard Garnett’s response to Carrie Severino pretty convincing. Here’s a portion:

    I agree entirely with Carrie (and with my friends Mia Reini and Jonathan Watson and others) that the Missouri Plan is bad policy. But, unfortunately, the Missouri Plan is part of Indiana’s constitution. Is Daniels really unworthy of conservatives’ consideration — is his understanding of the importance of judicial nominations really undermined — because he has not campaigned for a constitutional amendment, or because he vetoed a bill in 2009 that was more complicated than Carrie’s dissent suggests? (It was, in fact, little more than an effort by liberal Democrats in northern Indiana to secure reliably liberal judicial candidates in that part of the state and to fund an unnecessary and expensive new court.) I don’t think so.

    What’s your take on it Professor? · Feb 24 at 1:32pm

    Could you explain how the repeal bill was “little more than an effort by liberal Democrats in northern Indiana to secure reliably liberal judicial candidates . . .”? If so, why did it pass 83-3 in the House? There is something here that I do not understand.

  16. Palaeologus

    I wish I could Professor, but that was Prof. Garnett’s (he’s an assoc dean at ND law) parenthetical, not mine. I’m in MI like you, & don’t know the ins & outs of the IN bill.

    As for the lopsided vote, good question. I don’t have a really good answer, but the Dems did have a majority (52-48) when that bill was considered.

    P.S. I Re-read Carrie Severino’s piece. This stood out:

    When the issue was in front of Daniels he took the worst possible approach. In 2009, overwhelming majorities of the Indiana General Assembly (88–3 in the House, 35–15 in the Senate) approved legislation to kill that method in parts of Indiana.

  17. AmishDude
    Pilgrim:

    First, I think assuming that a jurist can be honest is a mistake….Idon’t believe that you would try to defend that proposition on reconsideration.

    Why not? Why should we assume that a judge is capable of superior morals? This all comes from the progressive notion that we should put experts in charge and insulate them from politics. Well, it’s my government and I should have a say.

    “unconsititutional” means something other than ”I disagree”

    I agree with that statement. Unfortunately, we are both at odds with current legal theory in which “unconstitutional” is synonymous with “bad idea”.

    I am referring to Article IV, section 4, guaranteeing a republican form of government for every state.

    If you read the dry details of the commission you see that 3 of 7 members are non-lawyers so they have a significant voice.

    So now the judges are beholden to the bar association and the legal profession, which has a bigger conflict of interest than anyone does in the judiciary.

    It is 4 too few. This is fox-in-charge-of-the-henhouse kind of stuff. We need civilian oversight of the lawyer-government complex.

  18. Palaeologus

    One other thing about that overwhelming vote, they could have overridden the veto with a simple majority, but didn’t.

    A few possibilities:

    1) Mitch inspires a great deal of fear in legislative Republicans. (fine by me)

    2) Mitch inspires a great deal of loyalty in legislative Republicans. (better yet)

    3) The legislative Republicans’ support for the bill was incredibly shallow. Oh Eric’s a nice guy, why not vote yes? Nah. I didn’t read it, did you?

  19. Pilgrim

    AD: The choices are popular election, executive appointment with legislative confirmation, or a hybrid like the MP – a strong lay input in the nomination process, selection by the executive a short list and followed at the end of each term by a “retain/do not retain” election of the folks.

    Popular election, particularly in low turn-out, off-year, elections, is rife with over representation of special interests and does a poor job of vetting professional competence.  You probably wouldn’t accept popular election of just any licensed physician to your hospital medical staff.

    Executive appointment with legislative confirmation gives you the federal system — take turns packing the courts with ideologically- and politically-compatible lawyers whose connections to a Senator or party may be more relevant than merit.

    The lawyers who are part of the MP selection process are generally service-minded leaders of the bar who select judicial candidates who enjoy wide respect for professional expertise and “judicial temperment,” which is short-hand for not being a jerk on the bench.  

    I have known and observed dozens of judges for a period of years.  There have been only a handful whose honesty, intellectual or otherwise, I would doubt.

  20. AmishDude

    Pilgrim: The problem is that the lawyers are the ultimate special interest and they’ve been getting richer and richer off of their little corrupt feedback loop.  Explain why a law professor, who writes no dissertation, has an easy math-free curriculum and has almost no competition from foreign fellow students in graduate school makes more than an engineering professor?

    The physician comparison does not apply because in medicine, there is the issue of physical skill and isn’t a scientific issue that requires experience to interpret.  Laws are written.  In English.  If they are too incomprehensible to be understood by the layman, then they are too incomprehensible to be obeyed by the layman.

    And, for that matter, doctors are overseen by administrators.  Lawyers and judges are overseen by…lawyers and judges.

    Would you have a malpractice jury composed solely of doctors?

    In practice, the MP system has produced far more ideologically rigid and left-leaning judges.

    As you may know, Iowa had one of these recall elections and ousted 3 supreme court justices, the first ever ousted, largely due to a gay marriage ruling. As the election approached, the judges were just dripping with their contempt for the voters.