After Sen. Daniel McCay, R-Riverton, proposed amending the Utah constitution to require election of judges every four years, Lt. Gov. Spencer Cox tweeted, “It would be impossible for me to overstate what a terrible idea this is.”
I couldn’t agree with him more.
Right now, Utah’s system for selecting and retaining judges is the envy of our nation. Our judges are insulated from the political firestorms that ravage our country. They do their jobs out of the limelight, which is exactly where their work belongs. Independence is a key characteristic of a well-functioning judiciary; shielding judges from the public pressure inherent in contested elections ensures that independence.
Becoming a judge in Utah is no easy feat. Applicants go before a nominating commission made up of citizen appointees, all of whom live in the judicial district in which the judge will serve. This nominating commission then sends its top picks to the governor, who makes a final selection, subject to state Senate confirmation. Once selected, judges must stand for a “retention election” at the end of their terms. The voters decide if the judge should continue to serve or find another job.
This process is called merit selection. The Institute for the Advancement of the American Legal System considers it the best method for maintaining an independent judiciary.
Most people, though, haven’t appeared in court. Most people know nothing at all about Utah’s judges. They’re just not prepared to cast votes on a judge’s future. To fix this obvious problem, the Utah Legislature in 2008 established a commission to evaluate judges and provide the results to the public. With the results of judicial evaluations before them, voters can now make informed decisions based on reliable data and then cast their votes. Check it out at judges.utah.gov.
One of Sen. McCay’s main complaints seems to be with these retention elections. Because most judges get positive recommendations from the commission, he claims that retention elections are “a joke.”
Well, the joke’s on Sen. McCay, because in reality retention elections are enormously effective in serving their essential purpose, to strengthen an independent judiciary.
I know this because I was in the room when it happened. As the first director of the Judicial Performance Evaluation Commission, I was privileged to work with a group of dedicated, smart, conscientious, volunteer commissioners. They spent endless hours creating, testing and modifying the tools to evaluate judges. They ensured we used a variety of evaluation methods, resulting in multiple data points. We watched judges go through the evaluation process and then evaluated what we saw.
What we saw surprised us.
Judges receive two evaluations in the course of each term of office. Their midterm evaluation is for self-improvement, giving the judges feedback on how they’re doing and providing notice to the judiciary if someone may need some help. The public never sees this evaluation. The second or final evaluation is the basis for the commission’s recommendation on whether or not to retain the judge for another term.
Here’s the little secret few people know. Sen. McCay, please listen up. The law provides that if a judge resigns or retires, the results of the most recent judicial evaluation are classified as a private record and can never be released to the public. Practically speaking, this builds in an incentive for judges who receive poor evaluations to resign or retire. If they do, they can leave with their dignity intact. No one will know they fared poorly on their evaluation. At the same time, the evaluation process achieves the goal of strengthening the judiciary by weeding out poor-performing judges.
So, yes, it’s true that the public rarely sees a “do not retain” recommendation from the commission. But that’s not because the commission never makes such recommendations. It’s because the judge has seen the recommendation and decided not to run for another term. This is a win-win situation, providing a high level of accountability for the judges and a strong judiciary to maintain the rule of law.
In 2016, retired United States Supreme Court Justice Sandra Day O’Connor presented me with the Quality Judges Award. I was told, “Utah’s independent and innovative judicial performance evaluation process is a national model of excellence. The process by which Utah chooses, evaluates, and retains judges balances the need for fair and impartial courts with the need for public accountability and transparency.”
I accepted this honor not only for my work as founding director, but also for the commissioners and the Utah Legislature. The Legislature, in particular, had the wisdom and foresight to embrace judicial selection and retention principles that put Utah in the forefront of independent judiciaries nationwide. To dismantle our progress by reverting to contested judicial elections would be a significant step backwards and a major disservice to the people of Utah.
Joanne Slotnik served as executive director of the Utah Judicial Performance Evaluation Commission from 2008-16.