It’s that long list that dumbfounds voters every two years. Judges, sometimes more than a dozen, are put on the ballot for retention elections.
Most of the time this has become a mundane act in which most voters don’t even recognize the name but are still willing to give it a thumbs up. Or they just leave them blank. In fact it’s only happened twice in decades that a district court judge has actually lost one of these elections. And no Court of Appeals judge or Utah Supreme Court justice has ever been voted out.
To Rep. Dan McCay, that is evidence that judges in Utah do not have to be responsive to the public. McCay has filed a bill in the Utah Legislature to end the practice of having the governor appoint state judges, who then stand for retention elections after several years in office. (Their first election comes after their third anniversary on the bench. After that, district judges have retention elections every six years. For Supreme Court justices, it’s every 10 years.)
McCay wants to amend the Utah Constitution to have the voters elect judges the first time and every time. Potential candidates would raise funds and campaign for office just like McCay and his legislative colleagues do. There are a number of states that operate that way.
McCay acknowledged to Fox 13 News that his bill is intended to start a conversation about how Utah fills its judicial benches.
Ultimately, McCay doesn’t have a lot of examples of where the current system has gone awry. He’s apparently not pointing to any specific judge who was appointed but shouldn’t have been. He’s addressing a hypothetical problem.
There’s a lot of talk these days about where on the democracy/republic spectrum we should be. Technology has made it easier and faster to hear from the public, and that has advantages and disadvantages.
Are Utah judges more insulated from public opinion than, say, the governor or legislators? Yes, and that’s a feature, not a bug.
The most insulated branch of government is, and should be, the judiciary. In the federal judiciary, appointments are for a lifetime. There are mechanisms for impeaching and removing federal judges, but the voters have no role in that. That kind of independence allows judges to go with the rule of law rather than the rule of mobs.
U.S. District Judge Robert Shelby needed that independence in 2013 when he declared same-sex marriage legal. Gov. Gary Herbert called him an “activist federal judge” who “is attempting to override the will of the people of Utah.” Actually, Shelby was just following the law. Six years later, every poll shows a majority of Utahns are OK with Shelby’s decision.
Utah’s current system strikes the right balance, and history hasn’t produced cases that argue otherwise. McCay should find better conversations to start.