This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Even the Utah Senate needs a mulligan now and again. In August 2012, Gov. Gary Herbert appointed Su J. Chon to be a judge in the Third Judicial District. The Senate confirmed the appointment on a vote of 17-10-2.
Chon's appointment was significant. It is a fact beyond dispute that Utah needs more female and minority judges. For this reason, Herbert was pleased to appoint Chon instead of other qualified candidates.
During Chon's confirmation process, the committee struggled with her qualifications, but not her gender or ethnicity. Chon had several advocates, but she had also demonstrated some issues that concerned committee members. In fact, the motion in the confirmation committee to recommend that Chon be confirmed by the Senate failed 2-4-0.
After the committee vote, Herbert marshaled his staff and began a lobbying effort in support of Chon. Although the vote of the confirmation committee is important, no committee vote is binding on the entire Senate, so the governor knew if he could convince at least 15 senators to support Chon, she would be confirmed.
With the help of several key senators, the governor and his staff rallied a total of 17 votes for Chon. This was the first and only time the recommendation of the confirmation committee has been overturned. Although I was one of the senators who found Chon not yet ready for the rigors of the bench, I could at least appreciate what the governor was attempting to accomplish.
Just four years later, Chon is up for her first retention election. According to the Judicial Performance Evaluation Commission, she is struggling to perform the duties of a judge. In its report on Chon, the commission states that "Judge Su Chon fails to meet the minimum performance standard for legal ability and scores well below the average of her district court peers in all other survey categories. Survey respondents focus on her perceived weakness in following legal precedent, lack of meaningful legal analysis in written decisions and slow decision-making." On a vote of 7-2, the commission recommends that Chon not be retained.
When the Judicial Performance Evaluation Commission recommends that the voters not retain a judge, one can be assured that the reasons for this recommendation are not only sound but well documented.
Chon should have never been confirmed by the Senate. The governor became too zealous in promoting a candidate who was not ready for the bench. None of this is of particular interest now. At issue is whether Chon should be retained as a judge. Obviously, I don't believe, either then or now, that Chon is judicially ready. And neither does the Judicial Performance Evaluation Committee. For this reason, and for the third time, I will be voting "no" on Chon.
Advice to the 17 senators who were persuaded by the governor: "Keep your eye on the ball as you follow through with judicial candidates, but you should probably take a mulligan on this one."
Sen. Scott Jenkins is chairman of the Utah Senate Judicial Confirmation Committee.