A Utah senator wants to dramatically change how state judges are selected.
Sen. Dan McCay, R-Riverton, introduced a proposed amendment to the Utah Constitution this week that would create judicial elections in the Beehive State.
Currently, when there is an opening, Gov. Gary Herbert receives a list of five nominees from an independent commission and picks his favorite, and that nominee is then subject to confirmation by the Senate. Voters then decide through retention elections whether the judge will keep his or her job.
Most judges face a retention election every six years, while Utah Supreme Court justices are on the ballot every 10 years. It’s rare for voters to boot out a judge in a retention election.
McCay’s proposal would eliminate that process — and instead allow candidates to fundraise and campaign and the public would vote for judges as part of standard elections.
Dozens of states have adopted this method, some with partisan elections and some with nonpartisan contests, allowing voters to have a direct say in the judicial system. Voters already select county attorneys and the state attorney general, who file criminal charges. But the direct election of judges is often criticized as creating a system that incentivizes judges to make decisions not based on law, but to win votes.
For example, The Brennan Center for Justice found in 2015 that judges in Pennsylvania and Washington sentenced defendants to longer prison terms the closer they were to reelection. Trial judges in Alabama, they found, overrode jury verdicts sentencing defendants to life in prison and instead imposed death sentences more often in election years.
McCay did not respond to The Salt Lake Tribune’s multiple requests for comment this week. But when Lt. Gov. Spencer Cox — who is currently running for governor — tweeted his disapproval of the bill, McCay responded on social media.
“It would be impossible for me to overstate what a terrible idea this is,” Cox tweeted Thursday.
McCay shot back: “So... the voice of the people is bad for Utah? I’m confused. You’ve always been a champion for the people so [your] desire to keep the judicial nominating process to yourself seems self serving.”
The senator later tweeted that retention elections were “a joke” and said the process doesn’t respect “the voice of the people.”
The Utah State Courts have not yet said whether it has a position on McCay’s bill, but a spokesman said it will discuss it during a Friday meeting. Other criminal justice stakeholders — like the Utah Commission on Criminal and Juvenile Justice and the Statewide Association of Prosecutors of Utah — have also said they are reviewing the bill and have not yet reached a formal position.
But the Utah State Bar has come out in opposition, saying the current system is the best way to ensure that the state’s judges are both competent and independent.
“Governor Herbert and his predecessors, regardless of political party, have done an excellent job in submitting qualified names for confirmation,” a statement reads. “Judges stand for retention on a regular basis, giving the public an opportunity to remove underperforming judges. The Bar feels an independent, impartial, and apolitical judiciary is a key component in good government.”