The Utah Senate’s current blockade of a nominee to the Utah Court of Appeals is not merely an affront to Gov. Gary Herbert and the nominee. It also is a threat to the integrity of our state’s merit system for selecting judges and risks undermining the independence of Utah’s judiciary.
The blockade of the nomination of Margaret Plane has put the Utah Senate on the verge of violating the Utah Constitution. A decision not to hold a hearing for the governor’s nominee was made by members of a single political party, which has invited the perception of partisan motivation.
The Utah Senate has a constitutional duty to “render a decision on each judicial appointment” without regard to any partisan factor. Section 8 of Article VIII of the Utah Constitution, which was adopted by Utahns in 1985, establishes a merit system for the selection of Utah judges. It includes a constitutional mandate that the “selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration.”
Utah’s judicial selection process has blessed our state with a judiciary insulated from partisan pressures and financial conflicts of interest. It is, rightfully, the envy of the nation.
The Judicial Selection Act governs the process for selecting judges in Utah. There are five stages in Utah’s judicial merit system: application, nomination, appointment, confirmation and retention.
First, applications for open positions in the judiciary are welcomed from all qualified potential candidates. By promising that candidates will be chosen based on legal excellence rather than partisan allegiance, Utah has been able to attract the best possible candidates for judicial service.
Second, applicants for vacancies on the Utah Supreme Court and Utah Court of Appeals are evaluated by the Appellate Nominating Commission, which ultimately nominates seven candidates for consideration by the governor. This nominating commission consists of a bipartisan group of seven members, lawyers and nonlawyers alike, who serve without compensation and who dedicate hundreds of hours reviewing applications and conducting personal interviews of candidates.
Third, from a list of seven nominees, the governor selects one and makes a formal appointment, typically after another round of personal interviews and careful vetting by the governor’s staff. To his great credit, Herbert has made uniformly excellent appointments of more than 100 judges, more than 75% of Utah’s judiciary.
Fourth, the governor’s appointee is subject to confirmation by the Utah Senate based solely on the nominee’s fitness for judicial office.
Finally, after a period of judicial service, judges face retention elections, which ensure that the judiciary is ultimately and directly accountable to Utahns.
Our state’s merit selection system is critical to the independence of Utah’s judiciary. It is what separates our state from jurisdictions where some believe that judicial power can be bought by the highest bidder. The absence of high-priced contested elections is also what prevents Utah’s appellate courts from becoming a third branch for political warfare — as has erupted in some other states with partisan elections for judges.
The rule of law and the expectation of equal protection under the law are also key foundations of Utah’s vibrant economy. Citizens and businesses that find themselves in court deserve judges chosen for their legal skill instead of any partisan badge. There must be justice for all in Utah without favor or partisan hue.
The failure to even hold a hearing and the rejection by the Utah Senate of an obviously qualified judicial nominee would undermine the independence of Utah’s judiciary. It would also create a chill on future applicants for judicial vacancies. The perception of politicization could deter qualified candidates, including women and minorities, whose service is needed to help Utah’s judiciary reflect the people it serves.
The Utah Senate should end its blockade and satisfy its constitutional duty. The Utah Constitution states that “the Senate shall consider and render a decision on each judicial appointment within 60 days of the date of appointment.” The phrase “shall consider” is neither discretionary nor permissive of the current blockade; to the contrary, the Senate has a constitutional duty to “render a decision” based solely on the candidate’s fitness for office.
Thursday, the Utah Senate should fulfill its constitutional duty. It can do so by following recent guidance from Utah Senate President Stuart Adams.
Less than two months ago, Adams signed a letter to the United States Senate decrying the “personal attacks” that had been made against a previous appellate court nominee. Adams then “respectfully request[ed] a prompt, objective and fair hearing” on a pending judicial nomination because the nominee and “the people of this great nation deserve serious discussions about judicial philosophy and qualifications, rather than politics.”
The Utah Senate should heed such wisdom from its leader. The Utah Constitution demands as much. And Utahns — as well as all of Herbert’s judicial nominees — deserve no less.
Paul Burke
Paul C. Burke was the Utah State Bar’s 2019 Lawyer of the Year.