Court-watchers in Indiana are experiencing an interesting alignment: there will be nominations for a new justice of the U.S. Supreme Court and a new justice of the Indiana Supreme Court. Justice Antonin Scalia passed away unexpectedly last weekend, and Justice Brent Dickson has announced his plan to retire.
There may be two vacancies on both courts of last resort, but the way those slots are filled are very different, reflecting different legal processes and political environments.
Article II, Section 2 of the U.S. Constitution empowers the President to appoint Supreme Court Justices, with the advice and consent of the Senate. Neither the Constitution nor U.S. Code provide more detail on the process. Over time, precedents and norms have been established, and in practice the President nominates a candidate, the Senate reviews the nomination and then votes on confirmation. This Congressional Research Service report provides interesting details if you are curious.
SCOTUSblog has plenty of coverage of who the President will nominate here. Setting that fascinating question aside, it is safe to say whoever is nominated will face significant obstacles in the Republican-controlled Senate. The Senate Majority Leader and many senators have already opined that the seat should be left vacant until the next president is elected.
Indiana is also looking for a new justice. This November Indiana will vote on both the president and its governor. Yet no one has suggested the seat be left vacant until after the election, and there is little doubt that a new justice will be sworn in shortly after Justice Dickson retires. What is different?
First, the governor appoints justices according to Indiana Constitution Article 7, Section 10. That section requires the governor to select a justice “without regard to political affiliation” and lets the governor choose from three candidates nominated by the Judicial Nominating Commission. The Judicial Nominating Commission consists of seven people: three lawyers, three non-lawyers, and the Chief Justice or designee. The lawyer members are elected by lawyers within a geographic district, and the non-lawyers are appointed by the governor, also from geographic districts to help represent people across the state. So, the governor has some influence on who is on the Commission, but certainly less influence on which three candidates for the court seat are nominated than the President, who gets to unilaterally nominate a candidate.
Second, lawyers can formally apply to be a justice, and the Commission interviews them. You can read the applicants’ dossiers here, and the Indiana Law Blog will be covering the interviews. You cannot apply to be on SCOTUS, and no public vetting occurs until the nomination is sent to the Senate.
Third, there is a hard deadline for the governor. If the governor does not appoint one of the three candidates within sixty days, the Chief Justice gets to appoint one from the same group. There is no deadline for nominating or appointing justices to SCOTUS, giving the president and Senate plenty of opportunity for delaying an appointment.
Finally, in Indiana the General Assembly has no role in the selection, while Senate confirmation is necessary to get on SCOTUS. This means that partisanship has less influence (or at least ability to delay) appointments to the Indiana Supreme Court than it does at the federal level.