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.