Tag Archives: Mark Massa

I’m as Ethical as Scalia is NOT a Persuasive Argument

A couple of days ago, the Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Save the Valley [update: the organization was Valley Watch, not Save the Valley] filed a petition asking Indiana Supreme Court Justice Mark Massa to recuse himself from hearing a case that will determine the viability of the controversial Rockport coal gasification facility. (I’ve written before about this boondoggle, birthed by political insiders and totally contrary to the free market principles to which the Daniels Administration paid so much verbal homage.)

Not even 20 hours after the petition was filed, Massa issued a ruling denying it. Clearly, the ruling had been written well beforehand–the lawyers who crafted the brief could have saved their (written) breath.

The argument for recusal rested on the long and intimate relationship between Massa and Mark Lubbers, whose personal fortunes are closely tied to the results of the lawsuit, and upon Massa’s friendship with and service to then-governor Mitch Daniels, who rammed the deal through over the qualms of both Republican and Democratic legislators. As columnist Charles Pierce wrote yesterday in his Esquire blog,Massa couldn’t be more tied into the people who want to build the plant if he came to work every morning in one of those NASCAR firesuits festooned with logos.”

Massa’s ruling relied heavily on Cheney v. United States District Court, the infamous case in which Justice Scalia refused to recuse himself from a pending case despite the fact that he had gone duck hunting with the Vice-President–a named party— while the case was pending. Massa neglected to note that the Indiana Supreme Court, unlike the US Supreme Court, is governed by one of those pesky codes of ethics. (Can we spell “appearance of impropriety”?)

At least he didn’t defend himself by pointing out that Clarence Thomas sits on cases in which his wife has an interest, while he and Lubbers are just best buds. (Actually, relying on Scalia or Thomas for ethical guidance makes me think of that old adage about fish rotting from the head. But I digress.)

In a particularly disingenuous passage, Judge Massa wrote:

“I have a friend who works for General Motors; must I recuse if GM is a party to a case before our court?” he wrote. “All of us on this Court have many friends who are lawyers, some of whom appear before us, including several to whom I am closer and see more regularly than Mr. Lubbers. If mere friendship with these lawyers were enough to trigger disqualification, my colleagues and I would rarely sit as an intact court of five.”

Well Judge, if you had a friend who worked for General Motors, that would be a lot different than having a friend whose continued, highly lucrative employment depends upon a favorable verdict– a friend who got you your first political job 30 years ago, a friend with whom you have subsequently shared many meals and social occasions, a friend who was one of the very few invitees asked to speak at the robing ceremony when you were sworn in as Judge.

I’m disappointed, but not surprised. This is the man who, as a candidate for Marion County Prosecutor, ran an ad asserting that his opponent was unfit for the office because in his private practice he had represented a criminal defendant. (I know several Republican lawyers who had supported Massa until that ad ran, but based on its intellectual dishonesty, instead voted for Terry Curry.)

Massa evidently couldn’t see an appearance of impropriety if it bit him.

…With A Little Help from My Friends

On my way to work this morning, WFYI informed me that today is the day Mark Massa will be sworn in as the newest Justice of the Indiana Supreme Court.

When Governor Daniels announced that he had chosen Massa, there was a good deal of criticism. Some observers expressed surprise that–once again–the Governor had ignored an opportunity to diversify the Court, that–once again–he had declined to appoint an eminently qualified woman. Adding insult to injury, Daniels claimed that his choice was based upon the candidates’ relative qualifications for the job, a manifestly bogus excuse.

I was not surprised by the choice, which I’d predicted well before the commission charged with winnowing the field even sent three names to the Governor. Nor do I believe it had any more to do with sexism than it did with merit.

This is Indiana–the crony state.

There’s a pretty robust academic literature dealing with political culture. Some states (Massachusetts, say) have a liberal culture that promotes public service; others (Arizona, Texas) take a considerably more conservative, parochial approach to the role of government. When I was researching state differences in political culture for a book on the Faith-Based Initiative, I asked George Geib–past Dean of History at Butler University and a long-time Indianapolis Republican operative–how he would describe Indiana’s political approach. His answer was that the framework within which we conduct our affairs is quid pro quo. 

Look around at the so-called “privatization” initiatives. Lucrative deals for parking and welfare intake have gone to well-connected ACS. The developer of the parking garage being built in Broad Ripple used to work for the Ballard Administration. A PR firm that gets city business just “happens” to employ Ballard’s son. These are just a few examples that come readily to mind; there are literally hundreds of others.

This isn’t new in Indiana, and it isn’t the exclusive provenance of Republicans. Both parties have practiced politics as spoils system, both have favored their cronies with appointments and contracts.

The problem women have in a crony system is that we are late to the party, and less likely to play the game–less likely to be one of the favored cronies. Nothing against our gender–if we were playing by the good old boys’ rules, we’d probably be equally likely to be rewarded with the plum jobs and/or contracts.

Mark Massa was counsel to the Governor; by all accounts, the two are friends. And in a state where doing business with your friends is the way business is done, his appointment was a foregone conclusion.