Before this summer ends, members of the Utah State Senate will have four separate chances to “consider and render a decision” on appointments by Gov. Spencer Cox to the Utah Supreme Court. Article VIII of the Utah Constitution requires senators to cast those votes “based solely upon consideration of” each nominee’s “fitness for office.” But what does that mean?
The constitution answers in part. The governor and members of the Senate must select judges “without regard to any partisan political consideration.” Consistent with that requirement, would-be judges do not disclose their partisan political affiliation when they apply. The governor does not ask about it when appointing them. Nor do senators ask when confirming them.
Beyond that, the constitution specifies qualifications for a Utah Supreme Court nominee as to age (at least 30 years old), citizenship and state residency (U.S. citizen and 5 years in Utah before selection), and professional status (be a Utah bar member).
Otherwise, the Constitution stays silent on what makes a judicial nominee fit for office. Like the governor, senators must use their judgment and discretion when deciding if a nominee clears that threshold.
The Utah Constitution lacks a “must have prior judicial experience clause” among its list of Supreme Court justice qualifications and selection requirements.
Unfortunately, a newly founded nonprofit — purporting to be “proudly nonpartisan and grounded in the principles of the U.S. and Utah Constitutions” — appears anxious to upset that settled approach. Co-Equal Utah has criticized Cox’s recent nominations of Jay Jorgensen and Stephen Dent for their lack of prior judicial experience. “The Utah Supreme Court is not an entry-level position,” the group said in a statement. It faulted Cox for “bypass[ing] sitting judges with years of trial and appellate experience to place two individuals with no judicial record directly on the state’s highest court.”
That is not a serious critique. For one thing, the Utah Constitution lacks a “must have prior judicial experience clause” among its list of Supreme Court justice qualifications and selection requirements. A group claiming to be grounded in state constitutional principles should know that.
For another, Co-Equal Utah’s extra-constitutional must-have-prior-judicial-experience rule would disqualify all but a handful of Utah bar members from applying for open Utah Supreme Court seats. Right now, Utah has 81 authorized district judge seats, one authorized business and chancery court judge, 33 authorized juvenile court judge seats, and nine authorized court of appeals judge seats. That totals 124 state judges serving on lower state courts.
Now compare that to the Utah Bar’s most recent public report listing its total membership as 9,478 active attorneys. Why does Co-Equal Utah want to render 98.69% of the Utah Bar categorically ineligible from applying to fill open Utah Supreme Court seats?
To be sure, current judges on Utah’s other courts can serve ably as a member of the Utah Supreme Court. But so can Utah bar members who have previously not answered a calling to judicial service.
Even in our state, examples abound. Before Gov. Gary Herbert appointed him to the Utah Supreme Court, former Justice Thomas R. Lee was a law professor at BYU Law School and a practicing lawyer. Former Justice Jill N. Parrish (now chief district judge on Utah’s U.S. District Court) was an assistant United States attorney in Salt Lake City when Gov. Mike Leavitt picked her for the Utah Supreme Court in 2003. Former Justice (and later Chief Justice) Michael Zimmerman was a practicing lawyer and adjunct law professor when Gov. Scott Matheson appointed him to the Utah Supreme Court in 1984. And Matheson appointed former Justice Dallin H. Oaks to the Utah Supreme Court in 1981 following his service as president of Brigham Young University.
In fact, members of the U.S. Supreme Court — equally “not an entry-level position,” as Co-Equal Utah puts it — have come to that court with no prior judicial experience. President Barack Obama nominated Justice Elena Kagan after she served one year as U.S. Solicitor General following a career in academia. President Richard Nixon nominated former Justice (and later Chief Justice) William H. Rehnquist in 1972 after Rehnquist spent a few years at the U.S. Department of Justice following a career in private practice. Nixon nominated former Justice Lewis F. Powell, Jr. in 1971 after his nearly four-decade career in private practice. Even the great Chief Justice John Marshall “had never yet filled any judicial station” when President John Adams appointed him “to the seat of chief justice of the United States.”
Is Co-Equal Utah’s position that former Utah Supreme Court Justices Lee, Parrish, Zimmerman and Oaks, and U.S. Supreme Court Justice Kagan (along with former Chief Justice Marshall and former Justices Rehnquist and Powell) are and were unqualified jurists because they had not donned a black robe before their appointments? If not — that is, if Co-Equal Utah will waive its must-have-prior-judicial-experience rule for those nominees, but not for Jorgensen and Dent — why the different treatment?
There is no good reason for it. As the service of justices in Utah and Washington D.C. confirms, a wide variety of prior legal experiences can make a nominee fit for judicial service on an appellate court of last resort. That includes — but is not (by the Constitution or actual experience) limited to — prior judicial service. Utah’s state senators should dismiss Co-Equal Utah’s contrary cry out of hand as they decide whether Jorgensen and Dent have the temperament, commitment to textualist and originalist principles, and courage necessary to discharge the new station to which they’ve been called.