Gov. Mike Leavitt will pick a new justice for the Utah Supreme Court on Saturday - as the law requires - but the Utah Senate likely won't confirm the nominee, thus giving lawmakers time to study changes to the nominating process in the Legislature next month.
Senate Majority Whip Craig Peterson, R-Orem, said Friday that while senators have no problems with the legal qualifications of the three judges Leavitt has to choose from, "many of us believe judicial appointments should reflect the general philosophy of the governor and (majority of) the Senate. These three don't."Last month, the Judicial Nominating Commission sent Leavitt the names of Court of Appeals justices Judith Billings and Leonard Rus-son and presiding 3rd District Judge Michael Murphy. By law, Leavitt has 30 days to interview the nominees, pick one and send that name to the Senate for confirmation. The 30 days run out Saturday.
"We will have a nominee tomorrow," said Robin Riggs, counsel to Leavitt. However, it may well be that the nominee either isn't voted on by the Senate at all, or that a vote is taken but the nominee rejected, Peterson said.
Riggs said the Constitution is silent on what happens to a nominee if the Senate refuses to act. Some believe the whole nominating process would start over, some believe the chief justice of the Utah Supreme Court would appoint from the three names sent to the governor.
If the Senate doesn't vote specifically on Leavitt's nominee, "things could get pretty interesting," said Riggs - especially if Chief Justice Gordon Hall on his own then picked someone for the high court.
Peterson said there are two issues senators are concerned about, the judicial philosophy of the three judges Leavitt is considering and the broader issue of the whole nominating process.
Riggs said Leavitt is still concerned about the nominating process, but that after personally interviewing these three nominees, he doesn't have concerns about their fitness to be good justices. "He feels good about the names he's been sent," Riggs said.
Peterson said the nominating commission is a good idea, and no one wants to do away with it. However, both senators and Leavitt have expressed concerns that the judiciary branch of government has too much influence in placing names of potential judges before the governor.
The commission has seven members. One is the chief justice of the Utah Supreme Court, two others are attorneys appointed by the Utah State Bar. Thus, three of the four commissioners are technically members of the judiciary. Leavitt and others say the chief justice, whether he seeks it or not, has too much influence on the commission - that his preferences prevail.
Hall is retiring Dec. 31. It is his place on the high court that Leavitt and the Senate are now considering. Hall vehemently denies he has undue influence on the commission and steadfastly defends the current procedure, saying it has taken partisan politics out of the nominating process and looks only at legal qualifications.
"It has given us qualified judges," says Peterson. "But partisan politics has been replaced by bar politics. It is clear (from the commission's three nominees) that the commission thinks one has to be a sitting judge to make a good Supreme Court justice, and that is just not the case." Peterson points to current associate Justices Michael Zimmerman and Daniel Stewart as two justices who came from private law practice to be appointed to the high court.
"Governors Calvin Rampton and Scott Matheson (Democrats) got some input into who came out of the commission and we got good judges. Now we're saying that Mike Leavitt (a Republican) can't? There has to be some way to have better communication between the commission and the governor's office. We're going to find that during the session," said Peterson.
"If we have to, we'll reject (Leavitt's new appointee) and start the whole process over again to give us time to find that solution, although none of us want to do that. We want to make it clear that we have nothing personally against any of these appointees."
Riggs said there are a number of suggestions floating around about how to change the process. Earlier this year, Leavitt suggested that the governor make all appointments to the commission. He was willing to be forced to pick a sitting judge, even two attorneys. But they would be his picks, not the bar's. Since then, says Riggs, other ideas have surfaced. "We like the commission, we don't want to do away with it," just make some changes, said Riggs.