Gov. Mike Leavitt has received "three fine choices" from which to choose the next Utah Supreme Court justice, but he's still displeased with the judicial nominating process, aides said Friday.
Capitol sources said the Judicial Nominating Commission has sent Leavitt the names of Court of Appeals justices Judith Billings and Leonard Russon and 3rd District Judge Michael Murphy from which to make his selection.As law requires, Leavitt has 30 days to pick one of the three and send that person to the Utah Senate for confirmation as a Supreme Court justice. Chief Justice Gordon Hall has announced he'll retire at the end of the year. This is Leavitt's first pick to the five-member Supreme Court.
Leavitt declined comment Friday on the three nominees except to say that he takes this appointment "very seriously. I don't know any of the three very well, I'll hold exhaustive interviews, a long process, and I'll be in a better position in 30 days to make an evaluation."
Aides said while Leavitt doesn't question the abilities of Billings, Russon and Murphy - and while he's glad to finally get a woman's name on the appointment list - the fact that all three finalists are sitting judges enforces Leavitt's belief that the judicial nominating process needs change.
"It looks like inbreeding (to get only names of sitting judges)," said Robin Riggs, counsel to the governor, "something he's raised concerns about before." Before Billings' name, Leavitt had not received the name of a woman as a possible choice. He's gotten the name of only one minority, and Leavitt appointed him.
Last month Leavitt nearly placed on a special legislative session agenda a change in how the Judicial Nominating Commission operates. He stopped short of that action - even though he'd been privately told he had the votes in the House and Senate to pass his changes - because of the upcoming Supreme Court nomination. It was no secret that Leavitt would like to see an old friend, former U.S. District Attorney David Jordan, come out of the commission and be available for appointment. Leavitt didn't want to make changes in the way the nominating commission operated - even if those changes would have come after the Supreme Court selection process - for fear that people would misunderstand his actions.Jordan was one of the 19 people who applied before the commission for nomination to the Utah Supreme Court, sources said. But Jordan wasn't picked. Asked if he was disappointed Jordan didn't come out of the commission, Leavitt declined comment, saying he had three names before him now and he'd work with those.
As reported by the Deseret News last month, Leavitt doesn't like the idea of a sitting judge picking his own replacement and doesn't like the influence the judiciary has on the selection process. By law, Hall as chief justice chairs the Judicial Nominating Com-mis-sion.
Hall vehemently denies he has too much influence in the secret commission meetings. "That perception is as far from reality as it can be," Hall said. "I have never made any effort to manipulate the commission in any way."
Leavitt doesn't like the fact that three appointments to the commission come from the judiciary. Of the seven-member commission, four are appointed by the governor, two are attorneys appointed by the Utah State Bar and the last is the chief justice. Some believe that the chief justice has too much influence on the commission, that the bar members and some lay commissioners defer to his wishes. Thus, Leavitt concludes, it is a question of separation of powers, that the judiciary shouldn't have influence on who can be appointed to the bench - such appointments should come exclusively from the executive branch and then have confirmation by the legislative branch - the state Senate.
Accordingly, Leavitt believes the governor should make all the appointments to the Judicial Nominating Commission. Hall disagrees. He likes the current system, he says, because it's proven an effective way to keep politics out of picking judges. The commission "makes its recommendations based upon merit, not other factors," Hall said Friday. Giving Leavitt all the appointments to the commission "is a step backwards. We've tried to get rid of politics in this process." And for Leavitt to get to appoint all members of the nominating commission "would certainly be an inroad to executive control of the judiciary," Hall said.
Last month Leavitt said he would bring his changes for the commission to January's legislative session. Friday, top aides said they've heard nothing from the governor to change that plan.
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Judith M. Billings, presiding justice, Utah Court of Appeals
Billings, 50, was appointed to the Court of Appeals by then-Gov. Norm Bangerter when the Appeals Court was firts established in 1986. She was appointed to the 3rd District bench in 1982 by former-Gov. Scott Matheson. Before that appointment she was a partner in the firm of Ray, Quinney & Nebeker. She is a 1976 graduate for the University of Utah Law School. In 1990, Women Lawyers named her Woman of the Year.
Leonard H. Russon, associated justice, Utah Court of Appeals
Russon, 59, was appointed to the Court of Appeals by then-Gov. Norm Bangerter in 1991. Former-Gov. Scott Matheson appointed him to the 3rd District bench in 1984. Before that appointment, he was a partner in the firm of hanson, Russon and Dunn. A graduated of the University of Utah Law School, he worked 21 years as a trial attorney his 1984 appointment.
Michael R. Murphy, presiding judge, 3rd District Court
Murphy, 45, was appointed to the bench in 1986 by then-Gov. Norm BAngerter. Before that he worked for the law firm of Jones, Waldo, Holbrook & McDonough. He's a 1972 graduate from University of Wyoming College of Law. In 1989 the local chapter of the society of Professioanl journalists honored Murphy with its Freedom of Information Award. In 1992 the Utah State Bar named him Judge of the Year.