Gehrke: Gov. Herbert’s judicial nominees include some unexpected, yet consistently talented, picks

(Francisco Kjolseth | The Salt Lake Tribune) Third District Judge Paige Petersen is appointed by Gov. Gary Herbert to the Utah Supreme Court during an announcement in the Gold Room of the Utah Capitol on Tuesday, Nov. 31, 2017. If confirmed by the state senate, Petersen will take the place of Christine Durham, who is the only female justice on the Utah Supreme Court.

I won’t lie. I was a little disappointed I didn’t make the cut to be Utah’s next Supreme Court justice.

Then I looked at Judge Paige Petersen’s bio and it made more sense. She’s an Emery County kid who went to Yale Law School (which I hear has a decent program), then worked as an assistant U.S. attorney in New York and prosecuted war criminals in The Hague. All before she became a district judge in Utah.

So I suppose she’s an OK pick, too.

I’ve been critical of Gov. Gary Herbert every now and then, but not now. Petersen is just the latest in a crop of distinguished nominees for a state bench that has been dramatically overhauled during his tenure.

Since taking office in 2009, Herbert has appointed two-thirds of the 116 state judges now serving, including six of the seven judges on the Court of Appeals and — assuming Petersen doesn’t have some dark secret in her past that halts her confirmation process — four of the five Supreme Court justices.

But he’s not just filling vacancies. The governor has nominated some outstanding jurists and quality people, like Appeals Court Judge Michele Christiansen and Supreme Court justices Deno Himonas and John Pearce (and I’m not just saying that because he’s married to my boss).

“My perception, personally, from the various vantage points I’ve had, is it’s something [the governor] takes seriously, and I don’t think he always picks the obvious choice,” said Utah State Bar President John Lund, who is married to a Herbert-appointed judge.

A big reason for the quality selections is Utah’s vetting process.

In 2014, the Institute for the Advancement of the American Legal System and retired U.S. Supreme Court Justice Sandra Day O’Connor assembled a model nominating process and what they came up with uses a commission to screen applicants, a gubernatorial appointment, judicial performance evaluations and then retention elections for judges.

It turns out the model they prescribed is pretty much the exact system Utah has used for years — with the state Senate confirmation process providing yet one more check on nominees.

Because of that, applicants with the type of experience that might otherwise not fit the traditional mold — practicing corporate law at the big firms — get a shot. That means people like Linda Jones, who spent most of her career with the legal defenders office and served on the board of Habitat for Humanity; or Patrick Corum, supervisor of the Salt Lake Legal Defenders Association, who also spent 18 years at the Viaduct/Pioneer Park Legal Clinic providing counsel to homeless clients.

Both were nominated last month and are awaiting confirmation hearings.

Contrast that with the haphazard patronage system for picking federal judges, where it often has more to do with being chummy with Sen. Orrin Hatch or Sen. Mike Lee and whether the president needs a favor rather than legal chops. It can lead to nominees who are more political and less uniformly qualified than we see in Utah.

Herbert says when he is screening candidates, he looks for people who are “smart, hardworking, thoughtful, careful, humble, unbiased and objective; someone who will listen to every argument with patience, treat parties and lawyers with respect,” and explain decisions in a clear manner.

“I do this without regard to politics. I look for people who are dedicated to the rule of law and who put that dedication above their own beliefs and sense of right and wrong,” Herbert said. “Above all, I am committed to appointing the best person for the job in every instance.”

There’s one more area that Herbert deserves credit for, and that is standing up for the importance of judicial diversity.

Over the past couple of years, Rep. Merrill Nelson, R-Grantsville, has led an attack on diversity on the bench, sponsoring legislation that would have ended the Judicial Nominating Commission’s practice of considering diversity as a tiebreaker between two otherwise qualified candidates.

Nelson disagrees with the notion that there is value in having the people wearing the robes be at least somewhat reflective of the people on the other side of the bench. And he’s wrong.

Herbert and his staff have defended the value of all types of diversity — gender, ethnicity and legal background — and took the somewhat unusual step of testifying forcefully against Nelson’s bill earlier this year when it was defeated in the Senate.

The governor has nominated 25 women to the bench, which represents nearly a third of his appointments, and while that is not representative of half the population that is female, it is more than reflective of the quarter of licensed attorneys in the state who are women.

Just four of his appointments have been minorities — compared to 9 percent of the state bar — so more can be done on that front, and part of that is being helped through programs to encourage ethnic minorities to pursue the law and build careers that could lead them to the bench.

Herbert, at the end of the day, has pulled off a remarkable feat, stacking the state courts with a qualified batch of judges that should give Utahns who might find themselves in the courtroom confidence in the process — and, no matter what else you think of the governor, that’s not a bad legacy to have.

Editor’s note: Supreme Court Justice John Pearce is married to Tribune Editor Jennifer Napier-Pearce.