In 1970, the voters of Indiana approved a constitutional amendment providing for merit selection of Indiana Supreme Court justices and Indiana Court of Appeals judges. This system, now in place for 38 years, has been used to select all of the current members of the Indiana Supreme Court and the Indiana Court of Appeals.
Indiana's system relies upon a state Judicial Nominating Commission consisting of seven members. Three members of the Commission are lawyers elected by the legal community; three are non-lawyers appointed by the Governor; and the seventh member is the Chief Justice of Indiana, who chairs the Commission. When there is a vacancy on the Supreme Court, Court of Appeals, or Tax Court, interested judges and lawyers submit applications to the Commission and the Commission nominates the three applicants it considers most qualified. The Governor makes the final appointment from among the Commission's nominees. Once appointed, a justice or judge must stand for a retention election at the first statewide general election after the justice or judge had served for two full years and, if retained, every 10 years thereafter. [During the retention vote, the voters are presented with the question 'Should Justice (or Judge) John B. Jones be retained in office?' If the justice or judge receives a majority of "yes" votes, he or she is retained.]
Some states, notably Missouri, have systems of selecting appellate judges quite similar to Indiana's. Other states rely on conventional elections in which candidates for justice or judge run against each other, in some states (including Ohio, Michigan, Illinois, and Kentucky) on partisan ballots and in other states (including Wisconsin) on non-partisan ballots. Still other states provide for appointment without any election or retention vote process at all.
Of the various methods of selecting appellate judges used in this country, Indiana's system best furthers the goals of impartiality and accountability. In many states, elections of appellate judges have become dominated by special interests that contribute literally millions of dollars to the campaigns of the candidates. This creates at least the appearance that the justice or judge who is elected will not be impartial when it comes to matters in which his or her principal supporters have a stake. It also creates at least the appearance that an incumbent justice or judge will cast his or her vote in certain cases in a way calculated to improve his or her chances of being re-elected. (Two stories in the New York Times detailed these concerns with Supreme Court elections in Ohio in 2006 and in Illinois and West Virginia in 2004. See "Campaign Cash Mirrors a High Court's Rulings" and "Case Studies: West Virginia And Illinois," New York Times, October 1, 2006.)
In contrast, justices and judges in Indiana decide cases fairly and impartially, free from any campaign finance considerations, need to attract votes, or fear of partisan attack.
At the same time, Indiana's system provides for accountability in several ways. First, the justices and judges selected are unlikely to be outside the mainstream with respect to their judicial philosophy and temperament precisely because appointees of the Governor and the Governor himself are involved in screening and appointing them. Furthermore, there is a check on their performance shortly after their appointment and at periodic intervals thereafter by means of the retention election process.
Judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention.
The men and women who serve on Indiana's Supreme Court, Court of Appeals, and Tax Court enjoy superior reputations both nationally and within the state for the quality of their decisions and for their impartiality, fairness, integrity, and hard work. This is directly attributable to the merit selection process Indiana uses to choose and retain these justices and judges. The voters of Indiana made an extremely wise decision when they put this system in place in 1970.
Note: This material was prepared by the Indiana Court of Appeals in answer to a question posed by the Indiana Law Blog.