Could the newest member of the Indiana Supreme Court replace its long-serving chief justice?
That’s the question that’s been bandied about in the days since Chief Justice Randall Shepard announced he’d be stepping down from the state’s highest court when his fifth term ends in March.
Court observers say Justice Steven David, appointed late last year, would be the most likely current member of the court to fill the role.
David, a former Boone County judge and military lawyer best known for his work defending Guantanamo Bay detainees, isn’t saying if he wants the job. He’s declined interview requests and a court spokeswoman said it would be inappropriate for her to speculate on who will be the next chief justice.
But others are. A day after Shepard made his announcement, the Associated Press sent out a story about the speculation swirling over David’s name. Former Justice Ted Boehm, whom David replaced on the court, said David was “the logical choice.”
Joel Schumm, a professor at Indiana University School of Law in Indianapolis, said David is the topic of that conversation for several reasons, including his age. At 54, David is the youngest justice on the court; Shepard, who turns 65 on Christmas Eve, was 40 when he was first selected as chief justice. He’s been re-appointed to that position four times, serving nearly 25 years in the role.
Schumm also noted that David clearly impressed the seven-member judicial nominating commission that selected him as one of their three top candidates to recommend to Indiana Gov. Mitch Daniels last year as Boehm’s replacement. “Whether he wants the job is a different question,” Schumm said.
That commission will be meeting in February to start reviewing applicants to fill the vacant seat created by Shepard’s departure and will turn over three names to Daniels. Then they’ll move on to selecting whom they think will make the best chief justice.
Indianapolis attorney Marcia Oddi, publisher of the popular Indiana Law Blog, noted that four of the seven members of that commission were appointed by Republican governors. David is one of three justices appointed by Republican governors to the five-member court. The others are Shepard, who is leaving, and Justice Brent Dickson, who would turn 75 — the court’s mandatory retirement age — before he could complete the five-year term as chief justice.
Shepard is expected to play a key role in picking both the next justice and his replacement as chief justice.
He sits on the judicial nominating commission that selects nominees to fill vacancies on the Indiana Supreme Court and the Court of Appeals. The commission also picks the chief justice.
Schumm said the commission may decide to nominate a justice candidate that could also be the next chief justice. “There’s a decent possibility that the new person could be the next chief justice,” Schumm said. It’s not unheard of: the U.S. Supreme Court Chief Justice John Roberts, who grew up in Indiana, was new to the nation’s top court when he was nominated as chief justice.
After Shepard, David may be the best-known member of the Indiana Supreme Court, but not by choice.
Earlier this year, he authored an opinion in a police-entry case that sparked a Statehouse protest and the ire of some legislators who saw it as an attack on constitutional protections against unreasonable search and seizure. David wrote the majority opinion that said the defendant in the case didn’t have the right to use force to resist a police officer who was responding to a domestic violence call.
David and his fellow justices received death threats after the ruling. The court later affirmed the decision in a rehearing of the case. Schumm noted that David will be up for a retention vote in November 2012, but he said he thinks the controversy over the ruling has since died out.
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