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Op-ed: Judicial diversity requirement is discrimination, and it isn’t needed

First Published      Last Updated Feb 26 2017 12:31 pm

Last week, the Utah House of Representatives approved House Bill 93, confirming legislative control of the judicial selection process and removing race and gender from selection criteria. The purpose is to maintain a process based solely on merit, as required by the Utah Constitution. HB93 is not an anti-diversity bill, but rather an anti-discrimination bill.

In 1984, Utah changed from a system of judicial elections to the current merit-based selection process. Chief Justice Gordon Hall explained, "The curse of the elective system is that it turns every judge into a politician," requiring judges to engage in political activities "that prejudice their judicial independence."




The Utah Constitution requires the Legislature to establish a judicial nomination process. By statute, the Legislature established a procedure that requires nominating commissions to select only the "most qualified" candidates as determined by their "ability, temperament, training and experience." Nominating commissions, the governor and the Senate are required to "select judges based solely upon consideration of their fitness for office."

From 1984 to 2010, the judicial nominating process was administered by the Administrative Office of the Courts under the direction of the Judicial Council. The council directed judicial nominating commissions to consider "diversity on the bench" when evaluating applicants "whose qualifications appear in all other respects to be equal." The Commission on Criminal and Juvenile Justice (CCJJ) carried over this diversity requirement when it assumed administration of the judicial application process in 2010.

HB93 seeks to overturn this unauthorized policy and practice. This bill confirms the exclusive role of the Legislature in establishing judicial selection criteria and reaffirms the constitutional and statutory standards that selection must be based solely on merit.

The Utah Bar Association opposed the bill because of concern that removing CCJJ authority over selection criteria "impairs [the] judicial selection process." It is troubling that this association of lawyers, as sworn guardians of our Constitution and laws, would assume a position directly contrary to their plain wording and intent. HB93 does nothing to diminish the quality of our judiciary. As Chief Justice Matthew Durrant observed in his 2017 State of the Judiciary speech, the excellence of Utah's judiciary is based on "a process for the selection of judges that is focused on merit, a process that yields the best and the brightest from among the legal profession to serve as our judges."

The notion that it's OK to consider race and gender when all other qualifications "appear … equal" is false. First, all other qualifications are never truly equal, and nominating commissions make no such formal finding; rather, the equality provision merely provides a pretext for discrimination. Second, case law does not recognize diversity as a legal justification for discrimination. Judging people by their race and gender is never OK.

Race and gender discrimination demeans the judicial selection process for all. For those excluded, race and gender pose immutable standards that can never be achieved — regardless of experience, effort or ability. For those benefited, selection carries a stigma that they were not good enough to qualify on their merits.

In other public employment, it is the policy of this state to promote equal opportunity and prohibit discrimination. Why would we deviate from that policy in selection of those who stand as guardians of the rule of law and justice for all?

Some argue the judiciary cannot be effective unless it reflects the racial and gender composition of our society. However, the judiciary is not intended to be a representative branch of government — that is the role of the Legislature. The role of the judiciary is to interpret and apply the law — independently, impartially and faithfully.

Others argue that we need a diversity of life experience on the bench, but every judge brings to the job a unique life experience. Diversity on the bench occurs naturally, over time, without artificial compulsion. California long ago barred race and gender preferences in judicial selection, and judicial diversity has not diminished.

As a Legislature, our duty is to ensure a judiciary that is qualified and true to the law, regardless of race and gender. HB93 fulfills that duty.

Attorney Merrill Nelson was first elected to the Utah House in 2012 and represents District 68, which includes Tooele, Juab, Utah, Millard and Beaver counties. He serves on the Executive Offices and Criminal Justice Appropriations Subcommittee.

 

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