A Case for Electing Indiana High Court Judges

We should elect our Supreme Court and Court of Appeals Judges in Indiana. A heretical statement, I know, but hear me out on two main points. One, elected judges better reflect the values of the state’s population. Two, the more activist a court is, the more necessary popular election is as a mechanism for accountability. I’ll address each in turn. 

First, popularly elected judges better reflect the values of the state’s population.

There are four basic ways judges are selected in the U.S.: (1) appointment by elected officials; (2) partisan elections; (3) non-partisan elections; and (4) selection by a commission, commonly known as the Missouri plan.

Indiana follows a Missouri plan model established in Article 7, section 9 of the State Constitution. The commission consists of seven members--three attorneys, three non-lawyer members, and the Chief Justice of the Indiana Supreme Court. The three attorneys are elected by the state’s lawyers. The non-lawyer members are appointed by the Governor.

There has been no research specific to Indiana, but Vanderbilt Law Professor, Brian Fitzpatrick, has compared these methods of judicial selection across several states. Fitzpatrick found that appellate judges selected by unelected commission, the process we follow in Indiana, displayed the sharpest ideological skew away from the state’s population. The next most skewed result was judges elected in non-partisan elections. Both skews were decidedly to the ideological left of the state’s population.

You would expect judges to be conservative in states with a conservative population. However, in states with a conservative population that choose judges by commission, the judges tend to be more liberal than the state’s population at large.

The least skewed result was judges selected by partisan election. That is, judges selected by partisan election most closely align with the values of the state’s population at large.  

Judges clearly reflect the values of the group that selects them. The important question, then, is what person or group of people should select judges.

In Indiana, lawyers are the primary group that selects high court judges. On our commission, the attorney slots are elected by the state’s lawyers. The Indiana State Bar Association organizes to elect preferred lawyers to the commission. No other organization of lawyers in Indiana participates in commission elections in this way. As such, the ISBA lawyers become the commission members. The chair of the commission is a lawyer, namely the Chief Justice. While the Governor appoints the remaining three lay people, they are outnumbered and deferential to the lawyers.   

Fitzpatrick finds that judicial selection commissions are usually controlled by lawyers’ organizations, as in Indiana. He cites Adam Bonica et. al., The Political Ideology of American Lawyers, 8 J. LEGAL ANALYSIS 277 (2016), for the proposition that American lawyers lean to the left of the ideological spectrum. Any honest observer would have to agree that the Indiana State Bar Association is a data point in favor of that proposition.

In contrast, there is not a single statewide elected Democrat in Indiana. Eighty percent of Indiana County Commissioners are Republican. Republicans hold super-majorities in both chambers of the Indiana General Assembly.

Conservative and liberal, Republican and Democrat, are not simply political positions. If they were, it would be proper to be alarmed about politics influencing the judiciary. Political associations are a proxy for ideology. There are conservative judges and liberal judges, and ideology matters. For instance, conservative jurists adhere to originalism and textualism, whereas liberal jurists prefer a living constitution and a pragmatic approach to statutory interpretation.

Lawyers as a whole are going to prefer more liberal judges. Indiana voters as a whole are going to prefer more conservative judges. There must be a value judgment made about which group selects judges. The argument in favor of commission selection is that it removes politics from the process. It does not. Ideological preferences still dictate, it is just that the electorate is much smaller and unrepresentative of our populace.

Some may argue that the Indiana voters do have a voice in electing our higher court judges. Every ten years, Indiana higher court judges stand for retention vote. This is hardly a reflection of the will of the people. No judge has ever lost a retention vote. None has even been close. There is no effort made by the judges to inform the electorate about their views prior to the vote. Voters have no idea who they are voting for. No serious-minded person could argue that the retention vote is representative democracy.

If ideological preferences matter, and they are reflected in the person or people selecting judges, then the group selecting judges should be the most representative sample of the people impacted by the judges’ decisions. That group is the Indiana electorate. Further, the process should be the most transparent and direct reflection of the representative groups’ preferences, which is accomplished by partisan election.   

Next, electing high court judges becomes even more important the more activist high courts become.

In general, judges are more insulated from popular opinion than officials from the other two branches of government. Judges have longer terms. Judicial appointing processes are designed, in theory, to protect judges from the whims of the public. These measures assume, however, that judges are deciding particularized disputes that come before them rather than making public policy affecting the populace at large.

Sometimes high courts stray from just deciding cases to making public policy. As an example, in 2020, the Indiana Supreme Court issued Indiana Criminal Rule 26, which altered criminal bail rules by court order despite an existing statute extensively covering bail. In altering the bail rules in the spirit of the no-cash-bail movement, the Indiana Supreme Court enacted wide-sweeping public policy affecting public safety and local government budgets.   

These new bail rules, rather than just impacting the parties to a case before the court, impact the entire population of the state. It is true that certain court decisions can have repercussions to the populace at large when issued in a particular case. Here, though, there was not even a case decision, just a court rule. The voters of Indiana have no recourse if they are dissatisfied with the impact of the new bail rules.

There are other areas of activism. The Court is currently leading a statewide effort aimed at improving the State’s mental health systems. While a laudable goal, should the Supreme Court be so involved? What if legislation that comes out of the effort winds up before the Court with constitutional challenges? Will the Supreme Court need to recuse? Is there even a process for that?

While there are no answers, the questions themselves reveal the problem. The more active a court is outside of simply deciding cases, the less claim it can lay to the protections traditionally afforded the judicial branch.

In sum, we have nothing to fear from the political process as it pertains to judges. A process, by the way, that seems to work just fine with local Indiana Judges. It will only serve to make the judiciary better reflect the values of the people of Indiana. And, if we are going to have an active court, then we need to provide more accountability in the form of political mechanisms that allow the population at large to express discontent.

That credibility and accountability can come from popularly electing judges at the Court of Appeals and Supreme Court. I encourage my fellow judges to be open to this idea as we all work to continually improve our court systems.