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.”]
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.