Sunday, March 06, 2016

Supreme Court Nominees' Judicial Philosophy

The Indiana Law Blog chronicled each of the interviews the Judicial Nominating Commission conducted this week of the 15 semi-finalists it considered before nominating three candidates to Gov. Mike Pence from which to choose as Indiana's next Supreme Court justice. This will be Gov. Pence's first appointment to the Supreme Court. There's not a lot there to draw conclusions about the nominees from their interviews, but it's the best we have so we're going to summarize them for your benefit.

St. Joseph Superior Court Judge Steven Hostetler was appointed by Gov. Pence as a trial court judge in 2013. The 57-year old previously practiced at the Mishawaka law firm of Thorne, Grodnik, Ransel, Duncan, Byron & Hostetler where his primary focus areas were creditors rights and bankruptcy, commercial, agriculture and real estate. When asked about the overwhelming power of police and prosecutors in criminal cases, Hostetler said it "probably feels that way to the accused." Hostetler said judicial restraint should be balanced with judicial responsibilities. In that context, he agreed, for example, with the U.S. Supreme Court's opinion in Brown v. Board of Education declaring racial segregation unconstitutional under the Equal Protection Clause as applied to the states under the Fourteenth Amendment.

As to statutory interpretation, Hostetler would "look to his own experience, dictionaries, legislative history and precedence." [Note, the Indiana Supreme Court has consistently held that it doesn't look to legislative history in interpreting statutes, confining itself to the text.]. Asked about a view once expressed by former Supreme Court Justice Thurgood Marshall on "doing what is right and letting the law catch up," Hostetler said he "does not entirely agreement with the statement." "When judges try to decide what is right, especially in conflict of precedent, problems arise," he added. In response to a question about the constitutionality of statutory caps on damages in civil cases, Hostetler said he would consider whether the damages awarded were similar to damages in other cases. Hostetler said he didn't think a statute had to "terribly" explicit in determining whether it overruled the common law. He added that the common law "should not be replaced more than it needs to be."

Boone Superior Court Judge Matthew Kincaid is the youngest of the three nominees at 45. He's been practicing law for 15 years. He briefly worked at a Chicago law firm for a little more than six months before working as an associate at the Indianapolis law firm of Riley Bennett & Egloff for about four years. He's been a trial court judge in Boone County since 2003, following in his father's footsteps. Kincaid said that if a specific right was not found in the constitution or a statute, the common law "may provide a right or remedy." "If the Legislature has made a decision different from the common law, the legislative determination should prevail," he added. On doing what is right and letting the law catch up, Kincaid said "he follows the law and lets the process play out."

Kincaid spoke approvingly of Indiana's medical malpractice caps, which he said were "adopted in light of the many good things medicine does." He declined to comment on the point at which a monetary cap in damages denies an injured person the remedy guaranteed by the Indiana Constitution. When asked about whether a statute should be interpreted as overruling the common law, Kincaid said "he would rely on how counsel frames the issue and examine the way in which the statute is written."

Geoffrey Slaughter, 53, of the Indianapolis law firm of Taft Stettinius & Hollister is the only currently practicing attorney and only attorney who has practiced law at a large law firm. He began his practice of law at the Chicago law firm of Kirkland & Ellis after clerking for a federal district court judge. A native of Gary, Indiana, he moved to Indianapolis in 1995 to work as a special counsel to the Attorney General before joining the firm now known as Taft Stettinus & Hollister in 2001 where has worked since. Slaughter is the only candidate previously nominated by the Commission for consideration by the governor. He, along with Hamilton Superior Court Judge Steve Nation, were nominated in 2012 when Gov. Daniels chose Loretta Rush. When asked about statutory caps on damages, he framed the issue as "one of constitutionality" but declined to comment further on his position "for obvious reasons."

Asked whether he believes a constitution evolves as society evolves, he said he is a "contextualist and an originalist." He believes changes should be made by amendment, not through judicial interpretations. When asked to reconcile his views with the U.S. Supreme Court's decision in Brown v. Board of Education, he said that "the dispute is between your fidelity to the Constitution and your fidelity toward precedent." He added that he "recognizes the tension but would not take a position in the abstract." Asked about the overwhelming power of police, prosecutors and judges, he responded that it involved two different branches of government and "any implication that they are all acting together as a consolidated power is incorrect." He said it is "not clear whether citizenry believes that the power is consolidated in such a manner."


Anonymous said...

Sorry to see that Judge Nation was passed over. Great guy.

Anonymous said...

None of these appear to be very impressive or actually knowing much at all about Brown V. Board of Education and the sand foundation it was built upon via my favorite wreckers, the Masons. I think Mike Pence ought to reject all of these and ask the stooges to come up with a different selection, and, if they don't do so, just sit on his hands. At some point he ought to tire of being used as ass wipe.

Anonymous said...

The 3 finalists don't have a lot of background in handling criminal cases.

Perhaps, Kincaid won't be selected
by Pence since David, also from
Boone County, is already on the
Supreme Court?

Anonymous said...

Judge Steve Nation has been the best candidate at least twice and been past over by the "powers to be" ! God only knows how the selection committees could continue to ignore this excellent jurist.