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Utah House votes to ban considering race, gender when nominating judges

First Published      Last Updated Feb 15 2017 11:01 pm


Diversity » Legislation sponsor says that existing practice violates state constitution, and that the process should focus only on ‘‘fitness for office.’’

The Utah House voted Wednesday to halt any consideration of race or gender — or such things as sexual orientation — when developing lists of potential nominees for state judgeships.

The ban passed HB93 on a 47-25 vote and now goes to the Senate.

Its sponsor, Rep. Merrill Nelson, R-Grantsville, argued that the Utah Constitution allows nominating committees to consider only "fitness for office" — and says recent consideration of race and gender goes beyond that and is unconstitutional.

He said, under current practice, the Utah Commission on Criminal and Juvenile Justice considers "race and gender. They are not legally permitted to do so. The purpose of this bill is to discontinue that illegal process."




The measure would adopt and put into statute all current CCJJ evaluation criteria used to vet potential nominees — except the one that allows considering diversity when nominees otherwise are essentially equally qualified. It would ban CCJJ from adopting any different rules in the future.

Nelson said "it is a fiction" that nominees are ever equally qualified — a requirement now before diversity may be considered — because someone always has somewhat-better qualifications.

"I am not saying that we should not have diversity on our bench," he said. "That's perfectly fine. There's nothing wrong with that — as long as they are the best we can find, as long as we are focused on merit."

Currently, nearly 70 percent of Utah state judges are white men and a quarter are white women.

Nelson, an attorney, said he is well-acquainted with the judicial nomination process, and went through it himself — although he was not ultimately appointed to the bench.

Others, especially Democrats, attacked the bill, noting that Utah still may have far to go to have its judges represent and understand the diversity in the state. For example, only one black judge has ever been appointed to the state bench here — Tyrone Medley, a former University of Utah basketball star, who served 20 years as a judge until retiring in 2012.

"There is a perception that somehow considering diversity [means] a person is less qualified, and I take great offense to that," said Rep. Mark Wheatley, D-Murray, who is Latino.

Rep. Rebecca Chavez-Houck, D-Salt Lake City, a Latina, said appointing a more diverse bench could improve cultural understanding — and perhaps reduce a situation in which minorities now have many more people in prison than would be predicted by their population.

She said Hispanics account for about 13 percent of Utah's population, but 18.4 percent of inmates. African-Americans make up 1 percent of the population, but 6.3 percent of inmates.

Rep. Lowry Snow, R-Santa Clara, an attorney who has served on nominating committees, said the current system works well, has produced quality judges and should not be changed.

He said it's important for minorities to know the state cares not just about having competent judges, "but judges that reflect what the makeup is of our state. Is that at least a consideration?"

Snow added, "Let's not shoot ourselves in the foot" and urged colleagues not to "restrict ourselves to a point that we are not picking judges that are representative of our citizenry."

The bill is opposed by the Utah State Bar, the CCJJ and the American Civil Liberties Union of Utah.

 

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