Nelson said that language points to considering race and gender diversity on the bench, which is outside the law.
"It's outside the prescription of the law as provided by the constitution and the statute," said Nelson, who is an attorney and vice chairman of the House Judiciary Committee. "It's stated in our public policy, as reflected in the statute, that all judges should be selected on the basis of qualifications and fitness for office, and race and gender have nothing to do with fitness for office."
But the language is not so clear.
Nelson points to a provision in the Utah Constitution that states that "selection of judges shall be based solely upon considerations of fitness for office," but Nelson leaves out the rest of the sentence, which says, "without regard to any partisan political considerations."
The statute about evaluating judges on their fitness for office lifts the same language from the constitution about politics.
Retired 3rd District Judge Tyrone Medley, the only black judge to serve on the state bench, said he reads that as attempting to preclude partisanship as a factor in evaluating judicial candidates.
"That language is clearly designed to exclude whether or not you are a Republican or Democrat or you were chair of the Democratic or Republican party," Medley said. "It seems to be an attempt to take partisan political considerations out of the equation."
And Medley said there is value in having diversity of all types on the bench.
"Our judicial system relies heavily on the public trust and confidence in the court system," Medley said. If the population diversifies and the courts do not, the judiciary "runs the risk of challenging and eroding public confidence in the court system."
"Along that same line, I think diversity, in fact, enhances the legitimacy of the court system and is consistent with our population following the rule of law," Medley said. "Without it, you have a scenario where, at a minimum, you have a perceived bias in the decision-making process."
Medley, who was appointed to the bench in 1984 by Gov. Norm Bangerter, is the only black person to ever hold a spot in the state court system. (Justice court appointments are controlled by local jurisdictions.) He retired from active-judge status in 2012.
Medley said he was aware of the significance of his position when he served on the bench.
"I wanted to try to do the best possible job I could do, so I could serve as a role model to minority students and other minority members of a population might find some inspiration from me having been successful enough to have a judgeship," Medley said. "I always thought what the position did for me personally and for the community as a whole was emblematic of equal opportunity."
But Nelson said the judiciary is not intended to reflect society, and that issues of racial and gender diversity will work themselves out over time.