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Analysis: Supreme Court sausage fest

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Lady Justice sits atop the front stairs at the 22nd Judicial Circuit Court of Missouri in downtown St. Louis. - REBECCA TOWNSEND
  • Rebecca Townsend
  • Lady Justice sits atop the front stairs at the 22nd Judicial Circuit Court of Missouri in downtown St. Louis.

By Lesley Weidenbener
The Statehouse File

Gov. Mitch Daniels is pondering his second appointment to the Indiana Supreme Court, a choice that is important because it gives the Republican an opportunity to extend his legacy beyond this final year of his second term and influence civil and criminal policies in Indiana for decades.

For Daniels — who must chose among three attorneys chosen by the Indiana Judicial Nominating Commission — the decision is about merit and judicial philosophy.

But some are watching to see if Daniels will appoint a woman to replace retiring Chief Justice Randall Shepard. Of the three finalists, only one — Indiana Judicial Center Executive Director Jane Seigel — is a woman.

Currently, Indiana has no women serving on its five-member high court. It's one of just three states — Iowa and Idaho are the others — that have an all-male supreme court.

Indiana hasn't had a woman on the court since Myra Selby left the bench in 1999 after serving four years. In fact, Selby is the only woman ever to have served on the state's highest court. She was also the state's first — but not the last — black justice.

"It is always an achievement for there to be a first," Selby told The Indianapolis News in 1995. "The barriers can be broken down only when people feel comfortable with things they are unaccustomed to. The first is probably the least enviable position, but it is very important."

As Daniels considers the candidates for the state's current opening, he said that gender will be one factor in his decision but it certainly won't be the key.

"I would love nothing more – and this is in many contexts for that matter – than to appointment women. Try to do it when I can. But it's a tiebreaker," the governor said. "We've got to have the best qualified judge, the best temperament. I want to see someone who will respect the boundaries and the separation of power and boundaries of judicial decision making."

But Sally Kenney, executive director of the Newcomb College Institute at Tulane University, argued picking a woman ought to be the priority for Daniels. Kenney, who specializes in gender in courts, said Indiana's lack of diversity on the state's high court is akin to workplace discrimination.

Women make up more than 50 percent of Indiana's population, roughly half of all the law school grads, about 30 percent of practicing attorneys in the state, and nearly one in five of the judges in county circuit and superior courts. To fail to have the state's highest court reflect that diversity is a problem, Kenney said.

But the most important reason for Daniels to pick a woman is "that people will look at the court and see it as illegitimate," Kenney said. She compared the situation to an all-white jury judging a black defendant. "Even if the jury is trying to be fair, it may not be justice," she said.

"It's not just about justice being done, but justice seen to be done," Kenney said. "It's very difficult to argue for the legitimacy of the court if it doesn't represent the majority of the population."

The editorial board at The Journal Gazette in Fort Wayne recently made a similar argument when it said the "best man for the Indiana Supreme Court is a woman." The editorial said the nominating commission should not have sent Daniels any candidate that was not qualified for the job.

But, the editorial said, "only one is female. It should make the governor's work very easy."

Still, similar arguments were made nearly two years ago when Daniels appointed Justice Steven David to the court. Then, the governor was also choosing from among one female and two male finalists.

And at that time, Daniels also said that gender would have been a tie-breaker. But ultimately, he said, there was no tie because David was the most qualified candidate.

Since then, other states have been figuring it out. Across the nation, roughly one third of all state justices are women, a statistic that has been increasing. Maybe soon, Indiana will figure it out soon too.

Lesley Weidenbener is managing editor of TheStatehouseFile.com, a news service powered by Franklin College journalism students.

Editor's note: The other two finalists to fill the Indiana Supreme Court vacancy are Indiana Criminal Justice Institute Executive Director Mark Massa, who served as Gov. Daniels' general counsel from 2006-2010, and Indiana Appeals Court Judge Cale Bradford.

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