The Hon. Randall T. Shepard: Some Core Judiciary Concerns

Editor's Note: In June of 2005, the leadership of DRI-The Voice of the Defense Bar formed a task force, chaired by John Trimble, to investigate issues facing the judiciary across America. The task force determined that the most readily identifiable areas of concern for the judiciary were 1) adequacy of judicial salaries, 2) adequacy of court funding, 3) court security, 4) unjust criticism of judicial opinions, and 5) judicial selection. These five topics were the focus of the work of the task force.

In this interview, Chief Justice Shepard provides his insights with respect to some of the topics covered by the Task Force in its report entitled "Without Fear or Favor" (see link to the report in the version of this article at

Editor: Why did you decide to devote most of your life to being a judge?

Shepard: I have been both a trial judge and an appellate judge. Each role is rewarding in its own way. As a trial judge, you have the chance to see individual litigants in person, to hear what they have to say, and at first hand to feel the importance of the matters that they bring to court. Most satisfying were the moments when you were able to rectify some malfunction or literally to right a wrong. It didn't happen every day, but it gave you the sense that you were putting your life to a good purpose.

As chief justice, the rewards are quite different. The Supreme Court can effect systemic change across a rather large court system in a way that provides our trial judges with more such moments. In its appellate role, the Supreme Court can shape the evolving law of modern legal issues.It works hard to help our trial court colleagues in their work and put them in a position to offer a better quality of justice to the 6.3 million people in our state.

Editor: How does inadequate funding for the courts affect the cost and outcome of litigation?

Shepard: America's trial judges are the heroes of its justice system. They labor with very limited resources and do a remarkably good job with what they are given. The problem of adjusting the demands placed on judges to the available resources has the same result as it does in the private sector - it puts pressure on quality.

In federal and state appellate courts, the problem of carrying a greater case load in the absence of a corresponding increase in the number of judges and expansion in court facilities has the effect of altering the amount of judicial thinking time that is applied to each case.

If you read descriptions of how federal courts handle what is called the non-argument docket, what you see is that the relative balance between judge and clerk and judge and staff attorney thinking shifts away from the judge and toward the clerk or the staff attorney. The same phenomenon happens in state courts as well. It poses very serious questions for just who is making the decision. The judges sign their names, but inevitably it shifts the balance between how much judge thinking time and how much law clerk or staff attorney thinking time goes into those decisions.

Editor: Do you find that legislatures and the public are sensitive to the need for adequate resources?

Shepard: The legislative response to the need for resources rises and falls understandably depending upon the health of public budgets. In the main, the Indiana General Assembly has been quite responsive to the needs of the courts. I think judges and the bar have to explain both to Congress and to state legislative bodies just how resources affect our work.

For one thing, we are a tiny sliver of anybody's budget - no more than two percent at most in any state or in the federal system. The declining number of lawyers in legislative bodies is a particular challenge because a higher percentage of the decision makers are people who are not involved with the courts on a regular basis.

Editor: It is sometimes said that in many courts the judge is not making as much as a young lawyer at a larger law firm fresh out of law school who has not yet passed the bar exam. Does this pose a threat to getting a proper hearing before someone who has a desire and capacity to probe into complex legal issues and to move cases along?

Shepard: Yes, for two principal reasons. Lagging judicial salaries affect who ends up as a judge. The paradigm used to be that people went to the bench after a career in private practice. That is a lot less common today because people in private practice simply can't justify taking the pay cut. You end up with a higher percentage of people who come to the bench from other public sector employment. The number of people on the bench who have law firm, corporate counsel or academic experience has been shrinking. My view is that the judiciary works best when you get people who have come to the bench from a variety of past career experiences. The present trend is not a healthy one.

The second reason is the effect on the morale of the corps. People come to the bench knowing what the salary is but, unlike in private practice or in corporations, they continually fall behind. They start out thinking the salary is X and then they discover there is no such thing as a regular cost-of-living adjustment and that 10 years later they are actually earning less than they were when they walked in the door. This leads them to worry about how they are going to meet college tuition and other rising expenses and continuing to justify this to their spouse. This is very wearing on the psyche.

It's hard to describe how these pressures translate into legal outcomes, but it can't be favorable. Judges don't like to be perceived as whining. They are very cautious about whom they talk to about it. But, when they talk to each other it is quite plain that low morale is bad for litigants.

Editor: Tell us about what happened in Indiana as a result of improved judicial compensation?

Shepard: At one point, Indiana judicial pay was ranked as 54th among American-flag jurisdictions, actually behind some of the territories. Habitually judicial salaries fell below the consumer price index in terms of adjustments from year to year.

In 2005, our legislature created a new pay scheme with a large pay raise making up for lost time. It also put in place a very favorable mechanism for keeping pace in the future. There was a noticeable improvement in the attitude of our 500 judges about their work. One of our judges said, "I always felt that I was part of a group with kind of a cloud over its head, the cloud is lifted and I am ready to roll."

The U.S. Chamber rightly feels that having a good court system that assures the rule of law will attract business to locate in a state. I can tell you our governor understands it in a heartbeat. Governor Mitch Daniels, who came out of Eli Lilly, is completely convinced. And, he's usually there when I say here's an improvement we need to make. From a business location standpoint, we are on everyone's short list with respect to the quality of our judges and courts.

As a result of the improvements brought about by Governor Daniels and our legislature, Indiana ranks very favorably in the Chamber's annual assessment of state court systems. We tend to be in the single digits, somewhere between sixth and ninth. We were 8th in the 2007 survey. I don't think I'd want us to be first. If you are first in the Chamber's ranking it might suggest that your court system didn't take sufficient account of the real-life risks to consumers and fairly litigate the consequences of those risks.

Editor: Another DRI Task Force proposal was to make merit a more important part of the process of selecting judges.

Shepard: The debate about how America should choose judges is as old as the country itself. The variety of ways in which judges are chosen I think can be placed along a continuum from relatively partisan to relatively apolitical. I think it is possible to assert that you get better judges with relatively less partisan approaches like the Missouri plan. They produce outcomes which lead to greater public confidence in the judiciary and in its neutrality.

The Missouri plan, devised there some 60 years ago, provides for a nominating commission of both lawyers and non-lawyers that screens applicants and then provides the governor of the state with a short list of applicants, typically three, whom it believes are the best prospects from among those who have applied. The governor is obliged to choose an appointee from that list, the appointee takes office, and thereafter on some periodic basis, usually in the range of eight to 12 years, the public is asked through referendum to decide whether this judge should be retained in office. The plan embodies a combination of features both merit-based and democratic that supplies a kind of stability to the judiciary that is very helpful. About thirty states use some variant of this approach for selecting judges in at least some of their courts, recognizing that most states use more than one way of picking judges.

Editor: The role of judges may be overshadowed by the "noise" of sensational media coverage. What steps can be taken to create a more positive image of the judiciary?

Shepard: Sensational coverage tends to leave the impression that the country's courts are just another form of drama rather than the critical institutions that they are. Courts need to recognize that these big moments - trials or decisions will attract huge attention - and then to undertake their own efforts to encourage a more balanced reaction on the part of the public.

In Bush v. Gore, the Florida Supreme Court and the Florida courts did a superb job at helping the press and the public understand that case, whether you agreed or disagreed with the outcome, and at helping people understand that litigation as it moved forward. The Florida press officer came out and reported several times a day saying, "Here's what's happening in what court and here's what will likely happen next." By contrast, the U.S. Supreme Court's decision was issued at 10 o'clock at night, with copies being handed out to reporters standing on the steps of the U.S. Supreme Court. That court is now moving toward a more open approach. I use Florida's approach as a dramatic example of what can be done by the courts to help ameliorate the effects of the sort of coverage that flows from big news cases.

One of the things counsel do that we can't do is help shape the expectation of clients and help clients tounderstand what the court is doing and why. Those confidential moments when the lawyer and client are working through how the lawyer intends to proceed and what the court proceeding is going to be like are very important. I think clarity and candor and thoughtfulness in those millions of discussions each year are moments when lawyers can explain how the judicial process works and help clients come to terms with the outcome.

Editor: Why is it important to rebut criticism that judges are not accountable? What message needs to be sent to the public?

Shepard: What we ought to ask our fellow citizens to think about is to whom or to what do we want judges accountable? I think we want them accountable to the law, accountable to the Constitution, accountable for a fair and impartial resolution. People need to understand that a judge's job is to be accountable to the law in the broad sense, the law being the collection of decisions our society has made about how we want our relationships ordered.

Editor: How do large political contributions to judicial elections affect public thinking about the judiciary?

Shepard: The effect of multi-million dollar judicial races has largely been a standoff. The contending sides match each other pretty much dollar for dollar. In only a few instances have they changed the plaintiff-defendant balance in state appellate courts. The public is left with the impression that judges are just another group of political animals.

Editor: What do the ethical rules say about campaign promises by judges?

Shepard: About four years ago, the Supreme Court decided Republican Party of Minnesota v. White striking down in a five-to-four vote a piece of the Model Code of Judicial Conduct that only a few states had adopted. It was a provision that urged a judge not to engage in public discourse on disputed issues of policy. The court said that canon of ethics violated the First Amendment.

More recently, what has been at stake are other parts of the Code of Conduct including what is called the pledges and promises clause. It says that a candidate for judge shall not make pledges or promises with respect to cases, issues or parties. Another section says judges shall not engage in the solicitation of campaign contributions. The Eighth Circuit on remand from the White case likewise invalidated both of these.

Fortunately, after that not many courts have followed the Eighth Circuit. And recently, in 2007 the attacks on these canons mostly have failed. The judicial disciplinary bodies who were the defendants in these cases mostly won. The heart of that issue is the right to due process. If a judge who is a candidate makes a campaign promise about how he or she will decide a given issue, it is hard to see how a litigant appearing in his or her court will be afforded due process if his or her case is decided not on the basis of law and evidence but on the basis of a campaign promise. This is a point that the Conference of Chief Justices and the American Bar Association have both been making and lately they have been winning.

Published February 1, 2008.