I write to express my strong opposition to SB109, which would transfer to the governor the power to select the chief justice of the Utah Supreme Court from among the sitting justices for a fixed term. My perspective on this issue is unique. I had the privilege of serving as a justice of the Utah Supreme Court for 16 years, and as chief justice slightly more than four years. I also served as an elected member of the Utah Judicial Council for six years and chaired that body for the four years I was chief justice.
I have heard advanced in support of the bill the rather odd notion that the five justices cannot get along if they have to choose the chief from among themselves. During my time on the court, I never saw any reason to think that having the governor appoint the chief justice would solve any such "problem." The job of the justices is to disagree at times. They may even be disagreeable. But very little of this disputation is related to the election of their chief every four years. The House and Senate select their leadership and yet manage to work together. The Supreme Court is no different.
There are a number of reasons SB109 is unwise.
First, no reason worthy of the name has been given for fundamentally altering the independence of the judicial branch. The drafters of both the 1896 Utah Constitution and of the landmark 1984 revision of its Judicial Article left the Legislature and the governor out of the internal politics of the Supreme Court. The Legislature should recognize the wisdom of those decisions.
Second, SB109 reflects a deep lack of understanding of the duties of the chief justice. The chief justice does not control how the court decides cases, and the chief justice does not run the judiciary. The power of the office rests in large part on credibility. Having the governor select the chief would undermine that credibility, actually disempowering the governor's favorite by undermining his or her credibility with the other judges.
For example, within the Supreme Court, the chief only presides over arguments and court conferences. Unlike the chief justice of the United States, the chief justice of the Utah Supreme Court does not decide who writes what opinion. That is determined by a random lottery system. The chief's job is largely ceremonial within the court.
Outside the Supreme Court, the chief is chairman of the Utah Judicial Council but votes only in the event of a tie. The Judicial Council consists of 12 judges elected to represent all of the judges in the state, and one member of the Utah State Bar. This structure was created in 1984 by an expert panel with strong leadership from former Utah Supreme Court Justice Dallin H. Oaks. The Judicial Council makes the rules and proposes the budget for the entire judiciary. The chief justice acts as the chief administrative officer of the court, overseeing the Administrative Office of the Courts' implementation of Judicial Council priorities, but the chief does not set those priorities.
Thus, the governor's appointing the chief would have no potential for dramatically changing the direction of the judiciary. But it would have the effect of weakening it by impairing judicial independence and introducing the corrupting influence of partisan politics.
It is a premise of our state constitution that individual judges should not be subjected to direct political pressures from the Legislature or governor during their term of office. SB109 would create the incentive for individual sitting justices to curry personal favor with the governor. One wanting to be appointed chief justice might well be induced to decide cases in ways that would curry favor with the governor. Worse, the ambitious justice would have every incentive to develop back-channel communications with the governor, and his or her competitors would do he same. Thus, SB109 would take the existing internal Supreme Court politics that involves only five people and add in the politics of the governor's office and, perhaps, the Legislature. This sort of incentive for undermining of judicial independence, and corruption of individual judges is the last thing that anyone with reverence for the American form of divided government should be willing to put in place.
As can be seen, the irony is that SB109, which has been touted as removing dissension from among the justices, almost certainly would increase it by bringing in the governor, who will have little real sense of the judiciary's needs or the capacities of the various justices for the real work of being chief justice. Moreover, the proposal would actually weaken the person the governor appoints. The almost certain response of the other members of the Supreme Court, and the judiciary as a whole, would be to lose trust in the chief justice and to pay much less attention to his or her views.
That the Legislature has chosen to entertain SB109 on the suggestion of some partisan is not a bad thing. The legislative body is there to debate proposals. But for the Legislature to ignore the realities of the job of chief justice, and the proven ability of the judiciary to manage its own house for more than a century, would be a great mistake. SB109 should be defeated.
Michael D. Zimmerman is a former chief justice of the Utah Supreme Court.