Mitch Daniels and the Judiciary: A Response to Paul Rahe
[Editor's Note: The following post, written by Indiana Governor Mitch Daniels’ General Counsel, David Pippen, is a response to two posts written by Paul Rahe entitled “Thinking about Mitch Daniels” and “Mitch Daniels and the Judiciary.”]
Paul,
Yesterday you posted what is the latest in a several-month string of pieces regarding judicial selection and Indiana Governor Mitch Daniels. First and foremost, I want it clear that Governor Daniels has unfailingly chosen rock-solid conservative jurists for the bench. He takes that responsibility seriously.
In naming Justice David, the Governor explained "I heard from Steve David the clearest expression of commitment to proper restraint in jurisprudence, and to deep respect for the boundaries of judicial decision-making. He will be a judge who interprets rather than invents our laws." The new justice echoed these thoughts at his induction: “…I have been selected to be a guardian of the law, not to make it.” That notion is further reinforced by conservatives in the state: “Governor Daniels is to be applauded for taking this opportunity to steer the Indiana Supreme Court back to its proper role in strictly interpreting the Indiana Constitution,” said Indiana Right to Life President and CEO Mike Fichter.
Jennifer Rubin (of the Washington Post) and Carrie Severino (of National Review) posed questions, but didn’t dig into what we have done or why. Superficial cherry-picking of memberships or comments made by an Army officer doing his assigned duty to defend the worst of the worst people is easy. Reading twenty-seven years worth of Officer Evaluation Reports, fifteen years worth of court decisions and performing extensive background and personal interviews to actually learn who a man is, less so. It is, however, necessary when making a Supreme Court pick. No one can know how Justice David will be viewed two or twenty years from now, but I can tell you I have a pretty good idea of the kind of conservative jurist he has been. I can also tell you that Governor Daniels believes strict construction of our constitutions (federal and state) is as important as any issue. It determines whether the people rule or will be ruled by an unaccountable few. He will not compromise on those principles.
Much attention has also been paid to half of the governor’s May 13, 2009 veto of House Enrolled Act 1491. The vetoed act was an effort by the Democrats to reinstate judicial election-by-political-machine in a single county, virtual one-party selection of judges in the Democratic home county of our then-Speaker of the House. Rather than an opportunity to expand public input in that county, it was a thinly veiled effort to consolidate political power.
The act had a second, equally large problem. The political machine portion of the bill was coupled with the creation of a new two-million dollar a year Court of Appeals District of three new state judges. Given the governor’s fiscal prudence, the cost of a new district was difficult to justify in 2009, and caseload did not justify the additional judges and expenses. The governor declared:
…if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone.
Rather than a referendum on the Missouri Plan, in any of its differing iterations, the vetoed act was an effort to consolidate political power wrapped in a deal too “good” to accept. Hindsight aside, the veto message was delivered to declare that Governor Daniels would not sell the judiciary of one county in exchange for an expensive additional Court of Appeals District.
These facts could easily have been checked, these considerations could easily have been discussed. But no one has called. No one has written. Instead, assumptions and declarations are made about what Mitch Daniels would do. I know what he does: without fail he requires his staff to probe and investigate and decipher as much information as is possible to ensure strict construction of the constitution lasts long after he is gone from office.
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Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
This is reassuring -- except in one particular. Why the lopsided vote in the Indiana House? Could you explain that?
Jul '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Very persuasive. Mitch Daniels is wise in his selection of staff.
Dec '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
David Pippen:
These facts could easily have been checked, these considerations could easily have been discussed. But no one has called. No one has written.
No better place to discuss these facts and considerations than here.
Jun '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
I am sure that Governor Daniels and Professor Rahe are both honorable gentlemen. It is wise to hear from both sides before arriving at a conclusion. Mr. Pippen has done an admirable job of presenting the governor's response. We should remember that all conservatives of whatever stripe are on the same side. Let us save our slings and arrows for the opposition. And pelt them good when the time comes.
Dec '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Mike Visser
David Pippen:
These facts could easily have been checked, these considerations could easily have been discussed. But no one has called. No one has written.
No better place to discuss these facts and considerations than here.
And, I'm hoping, no better place to compare notes on reports, discuss the reports, identify the good, the bad, and the partial, and determine what the facts really are.
For example, I'm uncertain about what the facts are on teacher's collective bargaining in Indiana
If Mr. Pippen could clarify that would be great.
Jul '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Sigh. Social conservatives and libertarians are like 16-year-old twins with learner's permits, always tussling over who gets to drive.
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Kenneth
Sigh. Social conservatives and libertarians are like 16-year-old twins with learner's permits, always tussling over who gets to drive. · Feb 25 at 4:39pm
There may be something to this -- though I am not sure that I am a social conservative as opposed to a libertarian. I believe neither position makes real political sense without the other. In any case, I am in the short term more worried about Daniels' posture regarding national defense. If that is not handled properly, there is no point to bothering about the adjudication of the arguments that seem to divide us.
Edited on February 26, 2011 at 1:45amDec '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Paul A. Rahe:
There may be something to this -- though I am not sure that I am a social conservative as opposed to a libertarian.
I spent a couple of years in the belly of the Libertarian Party beast. The LP consensus was there are very few true libertarians. Someone else here had the same experience and drew the same conclusion (Paleologus, I think).
I'm still not sure what it takes to be branded a so-called "socon".
Jul '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Paul A. Rahe
Kenneth
Sigh. Social conservatives and libertarians are like 16-year-old twins with learner's permits, always tussling over who gets to drive. · Feb 25 at 4:39pm
There may be something to this -- though I am not sure that I am a social conservative as opposed to a libertarian. I believe neither position makes real political sense without the other. In any case, I am in the short term more worried about Daniels' posture regarding national defense. If that is not handled properly, there is no point to bothering about the adjudication of the arguments that seem to divide us. · Feb 25 at 4:44pm
Edited on Feb 25 at 04:45 pm
Professor, I share your concern in that regard. Whatever quibbles some may have with Ronald Reagan's legacy, perhaps his single accomplishment that most heartened me was his re-building of our nation's defense capabilities. The subsequent downsizing of those capabilities, in the name of a "peace dividend" was rank folly.
Jun '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Paul A. Rahe
There may be something to this -- though I am not sure that I am a social conservative as opposed to a libertarian. I believe neither position makes real political sense without the other. In any case, I am in the short term more worried about Daniels' posture regarding national defense. If that is not handled properly, there is no point to bothering about the adjudication of the arguments that seem to divide us. · Feb 25 at 4:44pm
Edited on Feb 25 at 04:45 pm
There will be no point in arguing about anything if we don't achieve a firm majority in both houses of Congress and control of the executive branch. The fate of our republic hangs in the balance. Victory first. We can argue later.
Edited on February 26, 2011 at 2:04amDec '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
~Paules
There will be no point in arguing about anything if we don't achieve a firm majority in both houses of Congress and control of the executive branch. The fate of our republic hangs in the balance. Victory first. We can argue later.
The Senate will almost certainly go GOP in 2012. The unknown variables are the sizes of the GOP majorities in the House and Senate.
At issue is the Presidency. Obama can win if the wrong candidate is nominated.
The oft repeated theme here is that the so-called "socons" can be ignored because they have no place to go and there are legions of socially liberal moderates and independents who will replace the ones that leave.
If a game of chicken and "I'm calling your bluff" is played between the right-of-center social liberals and the so-called "socons", the winner will probably be Obama..
Edited on February 26, 2011 at 2:22amJul '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Nickolas
~Paules
There will be no point in arguing about anything if we don't achieve a firm majority in both houses of Congress and control of the executive branch. The fate of our republic hangs in the balance. Victory first. We can argue later.
The Senate will almost certainly go GOP in 2012. The unknown variables are the sizes of the GOP majorities in the House and Senate.
At issue is the Presidency. Obama can win if the wrong candidate is nominated.
The oft repeated theme here is that the so-called "socon" can be ignored because they have no place to go and there are legions of socially liberal moderates and independents who will replace the ones that leave.
If a game of chicken and "I'm calling your bluff" is played between the right-of-center social liberals and the so-called "socons", the winner will probably be Obama.. · Feb 25 at 5:21pm
What the heck is a right-of-center social liberal? I presume that's a slur against libertarians.
We're not socially liberal, we just happen to believe in the 10th Amendment.
Edited on February 26, 2011 at 2:25amRe: Mitch Daniels and the Judiciary: A Response to Paul Rahe
I certainly won't presume to guess at individual legislator motives, but there is a strong temptation to accept every judicial appointment opportunity.
Dec '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
I have two questions about the topic of Mr. Pippen's post.
1) Who were the other two persons put forward by the judicial selection committee for Gov. Daniels's consideration?
2) Did Justice David explain what he meant when he said that "Boumediene held... that there are no law-free zones in the USA"? It seems that Boumediene did in fact make novel law, rather than simply interpret it. Your evaluation of Justice David clearly found that the preponderance of his history indicated that he's of a conservative temperament, so what would induce him to hold that view in Boumediene?
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
I'm coming late to this -- but Ricochet members and readers already know that I'm a huge fan of Governor Daniels -- he's a guy who has done major, tangible, transforming work in Indiana. But I also have to commend him and David Pippen for taking the concerns of our membership seriously, and treating them with the respect they deserve.
Thanks to them both, and thanks to the Ricochet membership for making this kind of thing possible. I hope all of the -- ahem -- maybe/possibly/thinking-about-it candidates on our side will be so transparent and open and willing to engage.
Jun '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Nickolas
~Paules
There will be no point in arguing about anything if we don't achieve a firm majority in both houses of Congress and control of the executive branch. The fate of our republic hangs in the balance. Victory first. We can argue later.
At issue is the Presidency. Obama can win if the wrong candidate is nominated.
Edited on Feb 25 at 05:22 pm
The wrong candidate would have to be mind-boggling stupid to blow this election. Sixty-three Democratic seats were lost in the House during the midterms. The mid-west is in open revolt against entrenched Democrats. The Dems can't win without New Jersey and Wisconsin. The only question about President Obama is how much damage he can do before he's booted out of office. Any reasonable Republican candidate should take the 2012 election in a walk. I'm for Mitch because he's competent, has a track record of proven executive experience, and he's philosophically dependable on most issues. I'd prefer Ronald Reagan, but he's dead. I wish Fred Thompson were running, but he's not. Unity, people, unity!
Jan '11
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
Thanks to Mr. Pippen for taking the time to respond and set out the facts.
Nickolas
Mike Visser
David Pippen:
These facts could easily have been checked, these considerations could easily have been discussed. But no one has called. No one has written.
No better place to discuss these facts and considerations than here.
And, I'm hoping, no better place to compare notes on reports, discuss the reports, identify the good, the bad, and the partial, and determine what the facts really are.
For example, I'm uncertain about what the facts are on teacher's collective bargaining in Indiana
If Mr. Pippen could clarify that would be great. · Feb 25 at 4:24pm
Well, the first fact is that the poor misused apostrophe is in the wrong place. Unless you think that one teacher can bargain collectively.
Sorry. I don't usually kvetch about punctuation, but tonight I'm...
-Grumpy in Texas
Edited on February 26, 2011 at 3:08amJan '11
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
I admit that I feel somewhat reassured. The way the Missouri method was first described didn't sound very helpful for nominating originalist judges. Having read some of the responses, I got a different view on that. Now with David Pippen's response, I feel better about it.
However, I still have some reservations. How does Governor Daniels' comment about a "truce in the culture wars" play out in nominations? After all, when a president who wants to call a truce in the culture wars is put into the position of nominating a Supreme Court justice, surely that comment will be thrown in his face. If the governor always intended to nominate originalists anyway, of course, then one wonders why the governor made the comment at all. What did he mean by it, if it wasn't going to factor into his nominations?
Dec '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
~Paules
I'm for Mitch because he's competent, has a track record of proven executive experience, and he's philosophically dependable on most issues.
The general election is 20 months away. The first primary is almost a year away. I'm still shopping.
Whoever the candidate is he/she must have good judgment and the ability to form and hold together a broad based coalition.
He/she must earn the support and confidence of various right-of-center groups. That includes those concerned about national defense and security and whatever "social issues" he proposed calling a "truce" on.
Jul '10
Re: Mitch Daniels and the Judiciary: A Response to Paul Rahe
KC Mulville: I admit that I feel somewhat reassured. The way the Missouri method was first described didn't sound very helpful for nominating originalist judges. Having read some of the responses, I got a different view on that. Now with David Pippen's response, I feel better about it.
However, I still have some reservations. How does Governor Daniels' comment about a "truce in the culture wars" play out in nominations? After all, when a president who wants to call a truce in the culture wars is put into the position of nominating a Supreme Court justice, surely that comment will be thrown in his face. If the governor always intended to nominate originalists anyway, of course, then one wonders why the governor made the comment at all. What did he mean by it, if it wasn't going to factor into his nominations? · Feb 25 at 6:09pm
He meant don't scare away the independent voters.