The Utah Legislature is again considering changes that will harm our excellent judiciary.
HJR 5 proposes to amend the Utah Constitution to allow the governor to appoint any “qualified” individual to the bench, and SB 134 would expand the Utah Supreme Court from five to seven justices. HJR 13 seeks to change the Utah Constitution to allow the Legislature to call for a special election to remove a judge, and HB 262 would require a 67% favorable vote to retain a judge.
All these proposals inject politics into the courts and threaten the crucial independence of our judiciary.
For more than three decades, I worked as a law professor overseeing an internship program and regularly interacting with judges who supervised my students. My students and I were uniformly impressed that our Utah judges were intelligent, hardworking, thoughtful and ethical.
Tell your legislators not to undo Utah’s excellent merit selection and retention system.
The Utah Constitution requires that “selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration” and that unopposed retention elections be held on a regular basis.
Today governor-appointed nominating commissions review judge applications — considering education, work history, judicial and attorney references, interviews and comments from the public. The nominating commission forwards a list of five names (for trial courts) or seven names (for appellate courts) to the governor, who chooses one nominee whom the Senate must then confirm.
Allowing the governor to appoint someone outside this system may lead contributors and others deserving of “favors” to impose on the governor to nominate them. If this candidate couldn’t rise to the top five (or seven) based on merit, he shouldn’t become a judge.
The proposal to expand the number of justices on the Utah Supreme Court may be motivated by a desire to “pack” the court for political reasons, in light of recent decisions the Legislature does not like. It will not increase efficiency as the sponsors contend. Seven people reviewing one another’s drafts to seek agreement or mount thoughtful dissents does not get the work done more quickly. The justices themselves have said as much.
Requiring 67% “yes” votes in retention elections could permit a minority of voters to target a judge because of the decision in a particular case. The proposal to ignore existing judicial discipline and accountability review systems and to allow the Legislature to target a judge for removal through a special retention election flies in the face of the need for judicial independence and appropriate accountability.
Our Utah state merit system of judicial selection, review and retention is a national model. Professor Jordan Singer, a consultant for the Institute for the Advancement of the American Legal System, states: “Utah has a remarkably effective and trustworthy system for selecting, training and maintaining the accountability of its judges.” It comports with Republican-appointed Supreme Court Justice Sandra Day O’Connor’s Plan which, for retention elections, requires data about judicial performance that is “broad and deep and the inquiries must be about procedural fairness, demeanor, and knowledge — not about particular outcomes in individual cases.”
Our nation’s founders placed great importance on the separation of powers and on the independence of the courts, as a coequal branch of government, given the courts are entrusted with interpreting the Constitution and with declaring laws unconstitutional. Judicial independence was so important that the U.S. Constitution guarantees federal judges life tenure.
Today the American Bar Association emphasizes judicial independence when teaching “How Courts Work:” “Law won’t work without independent courts. That means courts that aren’t under the thumb of the political powers-that-be. An independent judge can assure that your case will be decided according to the law and the facts—not the vagaries of shifting political currents. . . . Often, courts are called on to uphold limitations on the government. They protect against abuses by all branches of government.”
Our citizens would be poorly served by less independent, more politicized courts. Independent, intelligent, ethical, hardworking judges are what gives our citizens confidence that they will be treated fairly in personal and business matters. This is something our economy and civil society depend upon.
(Linda F. Smith) Linda F. Smith is a professor emerita at The University of Utah College of Law.
Linda F. Smith is a professor emerita with the University of Utah S.J. Quinney College of Law.
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