What’s this idea of judicial retention?

Every general election in Indiana, you’ll see a section where you’re asked the following question: “Should Justice/Judge [Jane Doe] be retained in office?” You can either vote “yes” or “no.” If the Justice or Judge receives a majority of yes votes, they get to keep their job for another ten years. How does this work, and how is anyone who isn’t a lawyer supposed to know the answer?

The Indiana Constitution provides for merit selection of Supreme Court and Court of Appeals judges, rather than by popular vote. The rationale behind this is to allow judges to perform their duties without worrying about campaign fundraising, partisan attacks on their opinions, and the need to attract votes. Some believe that judges who are popularly elected could appear to make decisions that favor those who supported them and only to ensure re-election.

The process begins with the Judicial Nominating Commission, three of whom are lawyers elected by the legal community and three of whom are non-lawyers appointed by the Governor. The Chair of the Judicial Nominating Commission is the Chief Justice of the Indiana Supreme Court. The Commission reviews candidates’ applications for a vacancy and presents three recommendations to the Governor, who makes the final selection. After a judge or justice is appointed, they must sit for a retention vote in the first general election after their first two full terms, and then again every ten years.

While the process can be relatively political (in terms of knowing and courting the right people), it is not necessarily always partisan. If you can, try to do a little research about each judge rather than making a decision based solely on the party of the Governor who appointed them.

It’s not always easy for the public to know whether an appellate or Supreme Court judge should be retained. You can find a list of judges up for retention in the 2020 general election here, which gives each judge’s biographical information, a link to oral arguments in which they have participated, and a link to opinions they have written.

You are likely to get the best idea of what kind of jurist a judge is by watching a random sampling of oral arguments. This will not only give you an idea of how they might be thinking about a particular issue, it may also provide you with some insight on how they interact with attorneys who come before them and with their colleagues on the bench.

Since the process of writing opinions is actually relatively collaborative, reading the majority opinions a particular judge has written may not give you the best insight about whether a judge should be retained. Rather, you might gain more insight by reading a judge’s dissenting opinions, when they disagree with the majority opinion of their colleagues. How a judge counterpoints their colleagues is likely to give you a much better feel for how they analyze issues. Not all cases have dissenting opinions, however, but when they do, it is also likely that the majority opinion will contain an argument as to why the dissent may be wrong. It is in those moments that you will gain the best insight into a judge’s process.

You could also search the judge’s opinion for decisions made based on public policy (or, in particular, when public policy is used in a dissenting opinion). Normally, a decision is made by stating what the law (or precedent) is and applying the particular facts of a case to that law (or precedent). Sometimes, however, a case may be decided on public policy grounds, which means that a certain nuance may be taken because to do otherwise would not be good for the public as a whole. This, too, will give you insight into a judge’s value system in terms of what’s best for society and why.

Finally, look for cases of first impression. This is when a court is deciding something that has not been decided before. In those cases, there will be significantly more historical analysis and policy rationale given, which may, again, provide you with insight into a judge’s individual belief system.

When you vote in November (and I know you will), now you’ll be prepared to answer those judicial retention questions. Happy Democracy!

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