Picking a judge isn’t all politics in Utah — but Rep. Kirk Cullimore wants to remove the bipartisan guardrails, Robert Gehrke explains

Sen. Kirk Cullimore has proposed a bill that would completely change how the commission to nominate judges is made in Utah.

(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.

Utah Sen. Kirk Cullimore is proposing a sweeping restructuring of the Utah court system, stripping away long-standing guardrails intended to ensure the courts’ independence and partisan neutrality.

The move comes on the heels of high-profile setbacks for the Legislature in the courtroom, where judges have blocked implementation of both a bill banning transgender girls’ participation in high school sports and another outlawing almost all abortions in the state.

Cullimore — whose father’s law firm files more eviction actions than any other in the state — has also had his own beef with the courts and the way judges handle his firm’s eviction cases.

In a statement, Cullimore praised the Utah court system and said his intention in the bill is to give Gov. Spencer Cox more autonomy when it comes to choosing judges.

“It is within the sole purview of the executive branch to appoint judicial nominees. It follows that the Governor and the executive branch should be able to dictate that process,” Cullimore said. “Current statute puts some constraints on the selection process of judicial nominating commissions.”

Those “constraints,” however, are not there by accident.

Here’s how the process works now: Applicants to fill judicial vacancies are vetted by a seven-member nominating commission — appointed by the governor — that whittles down the field and submits a list of names.

Currently, only four may be from the same political party, one is chosen from a list of candidates submitted by the Utah State Bar. The Judicial Council — which sets policy for the courts — appoints an eighth, non-voting member. Commissioners must also live in the judicial district where the vacancy occurs.

Cullimore’s bill would do away with all of those criteria.

We could end up with a scenario where all seven commissioners are Republicans, the courts would not be formally represented and commissioners from Logan would be vetting judges from Blanding, or vice versa.

The move is puzzling to former Utah Supreme Court Chief Justice Michael Zimmerman, who, before joining the court, worked for Gov. Scott Matheson and helped craft the policy we have now — replacing the partisan election of judges and later nonpartisan elections that had been used to choose judges.

Indeed, Utah’s system has been pointed to by former U.S. Supreme Court Justice Sandra Day O’Connor and the Institute for the Advancement of the American Legal System as a model for how states should choose judges, in part because of the way Utah employs a balanced nominating commission.

“On the whole, the system has worked really well, and I read this bill and I just couldn’t figure out … what’s driving it,” Zimmerman told me.

It seems to me, the motivation is transparent. Republican legislators have been grumbling about activist judges since the courts blocked the state’s abortion ban from taking effect. This session, Rep. Brady Brammer sponsored legislation rewriting the rules for courts that would retroactively undo a judge’s injunction.

Other legislation targeting the courts is also likely during this year’s general session of lawmaking. One lawmaker planned to run a bill expanding the Utah Supreme Court from five justices to seven, but later dropped the notion.

All of it is an attempt to put the Legislature’s thumb on the scales of justice by retooling the system so pure partisan ideology becomes a key criterion — rather than experience, legal acumen and reverence for the role of the judiciary.

Cullimore said that is not his intent. “This bill simply gives the governor and his office more discretion and flexibility in filling nominating commissions throughout the state,” he said in his statement.

Utah’s Constitution requires judges be chosen “based solely upon consideration of fitness for office without regard to any partisan political consideration.” Cullimore insists that “nothing in the bill seeks to undermine that constitutional mandate.”

Cox’s office said the current system “served the state well, but there is always room for improvement.”

“The governor takes his role of nominating judges very seriously and aspects of SB129 would strengthen the governor’s ability to fill this role,” according to a statement from the governor’s office.

It is unclear, though, what weaknesses there are and what problem is being solved. All of the judges he has nominated — including two Supreme Court justices — have been confirmed.

Even if it is not Cullimore’s intent, the changes to the commission can only move the judiciary in a more partisan direction — either directly or by discouraging qualified applicants who might not meet the partisan tests from applying.

Let’s be clear, it’s not as if our current court system is stacked with squadrons of liberals. Every judge now wearing a robe has been appointed by a Republican governor and confirmed by a Republican Senate. Cullimore has never once voted against confirming a judicial nominee.

Every judge has to go before voters for retention elections and every ruling they issue is subject to appeals to judges and justices who have gone through the same GOP-controlled vetting process — usually more than once.

“It just seems to me it’s a real backwards step,” Zimmerman told me. “All in all, it seems to be making really significant [impacts] to the commission system that was originally set up and the declared purpose of which was to be nonpartisan and try to get the most qualified applicants.”

In doing so, we risk sacrificing our judiciary based on independence, impartiality and merit to reproduce what we’ve seen in the federal courts — where judicial appointments are just another partisan death match intended to help one side or the other achieve their political ends.

It’s should come as no surprise.

The Legislature has already stripped power from the governor, local governments, school districts and voters. If this passes, they will be undermining the only remaining check on their power — the only entity with the independence to still tell the Legislature “no.”

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Correction: Feb. 8, 2023, 4:15 p.m.• This story has been updated to reflect that former Supreme Court Justice Sandra Day O’Connor is alive.