Joel M. Schumm
Clinical Professor of Law, Indiana University Robert H. McKinney School of Law
After clerkships at the Indiana Supreme Court and Court of Appeals, Professor Schumm joined the faculty full-time in 2001. He teaches several courses, including an occasional Seminar on Judicial Selection Methods and directs the school’s Court Externship Program.
A New Justice for the Indiana Supreme Court
Indiana Supreme Court Justice Steven David is retiring this fall, and the process to replace him is underway. Nineteen judges or lawyers submitted applications earlier this month, and the Indiana Judicial Nominating Commission (JNC) will interview each on February 28 or March 1. This article highlights a few aspects of the process and applicants.
Hoosiers used to elect Indiana Supreme Court justices, but the Indiana Constitution was amended in 1970 to provide for gubernatorial appointment after commission vetting, a process sometimes called merit selection. The Indiana Law Review’s 2012 Symposium Issue includes several articles “Reflecting on Forty Years of Merit Selection in Indiana.”
The JNC is chaired by Chief Justice Rush and includes three lawyers (elected from three geographic regions of the state) and three citizen (non-attorney) geographically representative members appointed by the Governor. More information about the history of the JNC and its current members is linked.
The selection process is public, but few have the time or interest to request access to applications or watch the public interviews. Applications have been posted online since 2010—and are again this year. I’ve attended nearly every interview since 2010, writing summaries for the IndianaLawBlog and providing some commentary on the process.
The group of nineteen will be cut in about half after next week’s interviews. References will be checked, and second interviews will be held in early April, after which the JNC will vote on a list of three names to send to the Governor, who will have sixty days to make an appointment.
(Only?) Nineteen Applicants
Article 7, Section 10 of the Indiana Constitution sets the minimal constitutional qualifications to serve on the Indiana Supreme Court: ten years “admitted to the practice of law” in Indiana or five years as a “judge of a circuit, superior or criminal court.” As a result, several thousand Indiana lawyers qualify—but just nineteen applied. The number is a bit lower than the recent average of 24 applicants for a vacancy: 34 in 2010, 15 & 22 in 2012 (two vacancies), 30 in 2016, and 20 in 2017. Of the nineteen applicants, thirteen are currently judges (2 on the Court of Appeals and 11 on the trial bench), four applicants are in private practice, and two are lawyers for state government.
Perhaps the public nature of the process dissuades partners at law firms and those in some other positions from applying; a highly publicized interest in leaving the firm may not be well received by their partners and clients. Confidential selection processes, like those for federal magistrate judge, likely receive more applicants.
Furthermore, the application requires considerable work, including describing one’s most significant cases, previous jobs, and community/bar involvement; soliciting reference letters; compiling writing samples; and so on.
Politics may also play a role in the relatively low number of applicants. Although the Article 7, Section 10 instructs the Governor to fill vacancies “without regard to political affiliation,” rarely will Democrats apply when the Governor is a Republican—nor did many Republicans apply when the Governor was a Democrat. Three distinguished female trial judges who were elected as Democrats were finalists for three recent vacancies (Supreme Court in 2017, Court of Appeals in 2020 and 2021); none were selected by Governor Holcomb. Not surprisingly, none of the three applied for this vacancy, and just one of the nineteen applicants this year is a Democrat.
Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which is 75, although the mandatory retirement age for trial court judges was removed in 2011. Most justices have retired considerably earlier, including Professor Frank Sullivan who has taught at IU McKinney School of Law for nearly a decade since his retirement from the court. Just as Presidents often appoint federal judges likely to serve for decades, Governors have usually appointed justices in their 40s or early 50s, with a recent average age of 51 at time of appointment:
|Chief Justice Rush||54|
The nineteen current applicants range in age from 39 to 61, as of the date of their application, also with an average of 51.
The oldest justice appointed under merit selection was Justice Ted Boehm, who was 57 when appointed in 1996; the youngest was Chief Justice Randall Shepard who was 38 when appointed in 1985.
Governor Holcomb has shown an interest in appointing younger judges; he appointed Justice Goff in 2017 at age 44 and Judge Molter to the Court of Appeals last year at 39.
Law School, Grades, Class Rank
First on the list of statutory “considerations” for each member of the JNC to weigh in evaluating applicants is “[l]egal education, including law schools attended and education after law school, and any academic honors and awards achieved.” Ind. Code § 33-27-3-2(a)(1).
Question 3 on the application directed candidates: “List all law schools, graduate schools, and post-J.D. programs attended. Include the school name; dates enrolled; degree or certificate earned; class rank; and any academic honors, awards, or scholarships you received and when.” The second part of the question further instructed: “As part of your Supplemental Materials, provide a transcript—including a certified transcript for your original hard copy—for each school listed.” Although the applications are posted online, the transcripts may only be reviewed in person.
Law school grades are of some but limited use. Grading practices vary from law school to law school and have generally become more lenient over time. Class rank is arguably more useful because it provides a comparison of applicants to others within their graduating class. A 3.3 at some law school in the past few decades could mean an applicant was in the top 20% of their class or may mean they are in the bottom half. Although both Indiana University law schools calculate class rank, many applicants did not include it on their application—and it does not appear on the transcript.
The following chart, which was compiled by reviewing both the applications and the transcripts, is sorted by GPA and offered with the caveat that grading practices at law schools have changed over the years.
|Name||GPA||Class Rank||Law School|
|Clymer||3.278||11/127 (top 9%)||Valparaiso|
|DeGroote||3.344||23/164 (top 14%)||Valparaiso|
|Kenworthy||3.663||8/262 (top 3%)||IU-McKinney|
|Lund||3.739||3/127 (top 3%)||Valparaiso|
|Molter||3.652||5/200 (top 3%)||IU-Maurer|
|Oss||3.178||35/106 (top 33%)||Valparaiso|
|Spitzer||3.38||magna cum laude||IU-McKinney|
|Swaim||2.81||156/248 (top 63%)||IU-McKinney|
(The chart does not include Patrick Price, who attended Yale Law School, which does not use letter grades. Mr. Price’s transcript includes seven “high pass” grades.)
Do Grades Matter?
The GPAs of the five current justices range from 3.00 to 3.29 with class ranks (for the four provided) in the top 15%, top 24%, top 34%, and top 59%. In each of those processes, the applicants with the highest GPAs did not make the list of three. Those in the lower half of GPAs have seldom advanced either. With so many considerations and variables (practice experience, community/bar involvement, references, etc.), decades-old grades apparently have not weighed heavily.
An All IU Supreme Court?
Three of the current justices graduated from IU-Maurer; the other two from IU-McKinney. Continued IU domination is likely with twelve applicants (63%) from McKinney or Maurer, followed by four from Valparaiso, and one each from Yale, Notre Dame, and Ohio State.
More to Come
I plan to attend some of the interviews next week and offer more perspective in later posts.