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Mitch Daniels chooses a Supreme Court nominee — preview

The Backdrop

One of the names that will quickly float to the top of the presidential discussion as soon as the 2010 elections are over will be Indiana governor Mitch Daniels.

The reason for that is that independents in particular and much of America is looking for a proven fiscal conservative who will cut the size of government and Daniels has done that in the past six years cutting the size of Indiana government from 35,000 to 30,000 employees and having enacted budget line item measures of the effectiveness to the state budget.

The question that many of us as social conservatives will have is how is he on social conservative issues. Daniels himself has made social conservatives suspicious by saying that we “need a truce on social issues” for 2012.

I realize that for some of you that makes Daniels a non-starter.

For me, I’m willing to give him some leeway as long as I can feel good about who he will select as judges which is what brings me to today’s topic.

The opening in the Indiana Supreme Court

Indiana recently had a Supreme Court judge step down. The process is for people to apply for the position and then for a committee to widdle down to three the number of finalists. That list of three then goes to the governor and he has sixty days to choose a replacement.

There is very little information on all of these candidates so some of what I say here may be making a mountain out of a mole hill, but I have looked for everything that I could.

Here are links to the notes on the final interviews. Each interview covers three candidates so you need to scroll a bit within the article to see what each one said.

Robyn Moberly
Karl Mulvaney
Steven David

The pressure to pick a woman

There is additonal pressure on Daniels to pick Robyn Moberly because the Indiana Supreme Court is one of only two state Supreme Courts that is all male.

Daniels has responded to this pressure with the following comment which is point 1 in his favor:

Gov. Mitch Daniels said Wednesday that he would like to use his first Supreme Court appointment to put a woman on the bench but not at the expense of qualifications and judicial philosophy.

“It would be gratifying (to appoint a woman), but it cannot be the controlling factor,” he said.

My Take on the Candidates

Here are some key quotes that I note from each one.

From Robyn Moberly’s section:

Mr. Trimble asked how (Justice) Moberly would resolve a conflict in Court of Appeals’ decisions. As a starting point she would look at the underlying doctrinal basis of each opinion and see if anything has changed. She would consider whether one approach has proven more or less workable, and consider such things as how one approach might affect commerce.

She reiterated her concern for “compassionate justice” and noted it could continue to be fulfilled on the Court.

Did a whole bunch of alarms just go off for you? They sure did for me “compassionate justice” and approaches that have “proved workable” sounds like a recipe for Judicial Activism.

From Karl Mulvany’s notes:

Mr. Mulvaney recited Chief Justice Roberts’ analogy of calling balls and strikes and specifically mentioned deference to the legislature. His experience as court administrator would provide a “good base” of understanding the work of the Court.

In response to Mr. Trimble’s question about apporaching issues of first impression, Mr. Mulvaney cited with approval the approach taken by Chief Justice Shepard in Bolin v. Wingert. Courts should (1) survey other states and (2) apply the statute based on the words of the statute. Although Mr. Mulvaney did not say whether he agreed with the result, he did agree with the approach.

Mr. Trimble asked Mr. Mulvaney about his view of oral argument. Mr. Mulvaney explained he prepares by anticipating questions and would do the same as a justice, asking “those questions that help make the law work the way it should.”

Quoting Chief Roberts is great although I’m not sure why he would “look to see what other states have done” rather than focusing on the second part of that which is “the statute based on the words of the statute.”

Finally, we have Steven H. David:

When asked what different perspective he would bring to the Court, Jude David cited his military experience (ability to work with people from all levels, knowledge of the federal rules of evidence) and his work as corporation counsel for six years. He can work well with others but also compete, be a leader, and stand his ground when necessary.

Ms. Keck asks to what extent “political, social, and economic” concerns should factor into a decision. Judge David thought the three should be separated. He noted the social considerations may be a factor in some cases but not others. When considering to appoint pauper counsel, Judge David noted the “community is served better” sometimes with deviating a bit from hard and fast rules. As to political considerations, Judge David does not “blog” or “Facebook”; his role as a judge is to make decisions without regard to political considerations.

I sure wouldn’t mind having an ROTC/military guy on a court and I’m also glad that he feels that his decision should be made without regard to political considerations.

A final note is that between the opening round of thirty-four applicants and after the announcement of nine semi-finalists, there were ten additional letters of recommendation from Indiana judges and all were written for Judge David — two of them came from people who had been passed over in the first round.

The Consequences

For Daniels to be acceptable as a presidential candidate to social conservatives, he must at the very least be “good on judges” and this pick will give us a window into whether we can trust him on that issue.

The pressure is on for him to pick the candidate who seems most likely to become a legislator from the bench since she is a female.

While I don’t think it will be a deal breaker for him to pick Mobley (unless we find out more seriously down the road that she was known to be liberal and he knuckled under just to pick a woman), I think that picking one of the others (David or Mulvaney) would show that he is definitely committed to doing the right thing on judges regardless of the outside pressures that be.

My bet is that he will pick Judge David if for no other reason than Judge David is younger than the other two. I think if the commission had really wanted to give the governor a chance to put a woman on the court than they should have sent at least two women finalists (there were five male and four female semi-finalists).

Finally, it should be noted that the departing Supreme Court justice is the one who tended to author opinions in “complex civil cases” and that was a key area that the nominees were questioned about during the opening rounds of the process.

He has already given himself room to pick someone else with his comments about

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