This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In its 121-year history Utah has had one black judge.

Nearly 70 percent of all state judges in Utah are white males and a quarter are white females.

So it was pretty easy for Utah's conservative Republican legislators to see Utah had a real problem with judicial diversity: There's just too darn much of it.

Rep. Merrill Nelson, R-Grantsville, is sponsoring legislation to try to stop diversity's troubling spread, and his Republican colleagues so far have been falling in line.

Nelson has been an outspoken opponent of allowing — not requiring — judicial nominating commissions to consider an applicant's race or gender when vetting applicants to fill a vacancy on the bench.

In recent years, in the interest of advancing female and minority judges, the nominating commissions have used diversity — an applicant's background and experience — as a sort of tiebreaker among otherwise equally qualified candidates.

Nelson has argued that is poppycock — there is no such thing as candidates who have exactly equal qualifications and saw the practice as affirmative action in disguise, something he would not tolerate.

In 2014, Nelson tried to eliminate funding for the judicial evaluation commissions unless they dropped diversity as a consideration.

Nelson then went after the Commission on Criminal and Juvenile Justice, arguing it was exercising the diversity tiebreaker without written rules in place.

So CCJJ late last year wrote and implemented its rule.

Now Nelson is sponsoring HB93, a bill that would prohibit CCJJ from implementing rules about the judicial vetting process. If they can't write rules, unless the Legislature specifically says diversity should be in the mix, it would be completely off the table.

Nelson said at a recent committee hearing that he's not trying to limit diversity, just that he wants to make sure the most qualified candidates end up on the bench.

You can judge for yourself if you believe that statement. That is, unless you're a woman or a minority, in which case you probably aren't qualified to judge much of anything and should ask a white man to explain it to you.

The rule that has Nelson so upset states that, when the evaluation commission deems an applicant's qualifications "in all other respects to be comparable, it is relevant to consider the background and experience of the applicant in relation to the current composition of the bench for which the appointment is being made."

That "background and experience" isn't limited to race and gender. It includes things like whether the applicant did defense or prosecutorial work, or civil or criminal law, or balancing other various interests.

But Nelson, an attorney who applied and was passed over for a judgeship under Gov. Mike Leavitt said that weighing factors like race or gender is "an inadmissible consideration and … takes us away from the constitutional and statutory standards of finding only the most qualified applicants."

The Utah State Bar is opposed to Nelson's bill and says the current system works. So does CCJJ and the American Civil Liberties Union.

It was not, however, opposed by five of Nelson's Republican colleagues on the House Government Operations Committee last week, who expressed reservations about the bill and questioned the need for it, but advanced it to the full House for a vote, probably sometime this week.

Nelson contends that the diversity considerations "dilute" the quality of Utah's judiciary.

But if one considers that the legitimacy of the entire justice system hinges on citizens, regardless of race or gender, having confidence in the fairness and equity of the system, fostering diversity doesn't dilute the judiciary, but strengthens it.

Moving toward that goal will take time, it will take recruitment and mentoring, and fostering a belief in young minority lawyers that they actually have a shot at one day serving on the bench.

And it will take role models like retired Judge Tyrone Medley, who was appointed to the bench in 1984 by Gov. Norm Bangerter and, to this day, is the only African-American in Utah to serve as a state judge.

When I talked to Medley last year, he spoke about how he was keenly aware of the significance of his position.

"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," he said. "I always thought what the position did for me personally and for the community as a whole was emblematic of equal opportunity."

Nelson's crusade against diversity in the courtroom would take Utah in the opposite direction, not just hurting the legal community or minorities, but undermining confidence in the justice system.

And it will help ensure that, as is the case today in Utah courtrooms, only the robes are black.

Twitter: @RobertGehrke