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In "The Trial," by Franz Kafka, there is an interesting story told of a country man who is prevented access to the law by a powerful doorkeeper.1 The doorkeeper warns that, even if the man obtains access to the law through this entrance, there are other keepers who stand at every door in the great halls of the law, one more powerful than the other, and that he is the least powerful of all the doorkeepers. I would like to make some observations about these "other keepers," specifically the ones who sit at the entrance to perhaps the most honorable position in the law. The keepers of whom I will speak sit at the door before the bench.
Importance of Judicial Office
Ideally, the doorkeepers who sit before the bench would work to ensure that every state judiciary is comprised solely of judges who possess
a high degree of integrity, legal knowledge, and ability to interpret and apply the law in an impartial manner. Exceptional doorkeepers would ensure that all judges would be
professionally experienced and that they would demonstrate an extraordinary ability and a willingness to continue cultivating qualities of compassion, humility, tact, patience, and
understanding.2 These are high expectations, of both those who are permitted access to the bench and of the doorkeepers themselves. It is remarkable how many Utah jurists meet, and in most cases even exceed, these high standards. We owe this good fortune to both the doorkeepers and the many men and women who are willing to set aside other interests and dedicate their talents to the bench. It is my opinion that most other states can only aspire to the quality we have come to expect in our judges. I am convinced that Utah's unique approach to judicial selection is the primary reason Utah is able to attract and retain so many well qualified people to the bench.
Judicial Selection
According to the U.S. Department of Justice, judicial selection occurs for three purposes in the state courts: 1) to fill an unexpired term upon the
retirement, resignation, or death of an incumbent judge; 2) to select for a full term (often referred to as the initial selection); and 3) at the end of a term (often referred to as a
subsequent term).3 In the majority of states, the doorkeepers before the bench are the electorate. Although once considered to be a wise selection process, Utah no longer permits the electorate to guard the doors to the bench for either initial selection or for unexpired terms of office. Utah changed its selection process not because Utah's electorate was necessarily a poor doorkeeper, but more so because of the unavoidable consequences contested elections had on the judicial system.
As Chief Justice Gordon Hall explained to the legislature in 1984 just prior to its vote on the revised judicial article, which changed the judicial selection process: "there
is no harm in turning a politician into a judge, he may become a good judge. The curse of the elective system is that it turns every judge into a politician. Judges selected through
contested elections are obliged to engage in political activities in ways that prejudice their judicial independence."4 May I reiterate the wisdom in these words: judges who engage in political activities can prejudice judicial independence. Consequently, Utah replaced contested judicial elections with a new selection process to increase the independence of the Utah judiciary.
With the elimination of contested elections, Utah now fills both initial term and unexpired term vacancies through an appointment process which includes a judicial nominating
commission, gubernatorial appointment, and Senate confirmation; subsequent terms of office are filled by an uncontested retention election.5 This merit-based system is a good system. It is a model supported by both the American Judicature Society and the American Bar Association.
Despite the problems of contested judicial elections, many other states continue to cling to this method. To mitigate some concerns with contested judicial elections, the National
Center for State Courts recently published a Call to Action which provides twenty recommendations for consideration by states that elect some or all of their judges.6 Upon review, few of these recommendations apply to Utah since this is the only state that uses a merit-based judicial selection process as the sole method for selecting all of its state judges. The wisdom of Utah's system is not only evident in the quality of its judges, but it is also lays to rest all of the previous controversies Utah has experienced with respect to judicial selection. As noted by former Utah Supreme Court Justice Dallin Oaks, "we have already had two epic constitutional battles in this state which have been very unpleasant for every branch of government. Those controversies can be put to rest in the provisions of the constitution. They are put to rest by a compromise that recognizes the interest of the legislative branch, the people in their elective process, the judicial branch, and the governor, and the interest of the people of this state in qualified applicants."7
Utah's method of judicial selection provides a process by which the interests of all three branches of state government may be recognized. The nominating commissions ensure
that the pool of candidates from which the governor must make his or her selections are chosen based on legal qualifications and experience, and not political connections. For additional
terms of office, judges in Utah are not required to face the appointing authority, the legislature, or a contested election for each additional term in office, as is the case in more than
forty other states.8 Additionally, relatively long terms of office, ten years for Justices of the Supreme Court, and six years for judges of other courts of record, also promote increased judicial independence. All of these factors contribute to an independent judiciary.
Utah Senate Confirmations
A. Beyond A Perfunctory Review
Because of recent events involving a small subset of judges who have apparently failed to maintain the
high standards expected of them, the Senate underwent an evaluation of its constitutional role in the judicial selection process to determine what, if anything, it could do to reduce the
likelihood of confirmation of unqualified candidates. Upon review, the Senate discovered that compared to the eight other states that provide for senate confirmation, Utah's process
relied on the least amount of information and was the most informal. The confirmation process was perfunctory.9 The Senate seldom interviewed candidates and requested only a candidate's resume. In comparison with the other eight states, it appeared as though the Utah Senate had neglected its constitutional duty.
The Senate is now committed to making an independent assessment of each judicial candidate. Beginning with the two recent appointments to the Utah Supreme Court, the precedent has
been established for a dignified, professional, and respectful Senate confirmation process. The assessment will include a review of the appointee's professional experience, integrity,
judicial temperament, legal knowledge, and ability to interpret and apply the law in an impartial manner. I believe this is not only the Senate's prerogative, but it is the Senate's duty.
B. Purpose for Senate Confirmation
Senate confirmation serves two primary purposes. First, it allows the Senate to conduct an independent assessment of the
qualifications of judicial candidates. Second, Senate confirmation is a public process, whereas the procedures of the nominating commissions and the governor are not. As the final review
prior to taking office, a Senate check on the executive's authority will make it less likely that a judge will be selected who will damage the public's confidence in the judiciary.
Increased Senate scrutiny will cause the nominating commissions and the governor to be more thorough when evaluating who will be commended to the bench and why.
C. Possible Downside
Whatever improvement increased Senate scrutiny may provide to the judicial selection process, there is also a potential downside. It is possible, for instance,
that increased Senate scrutiny may result in the denial of a confirmation. If this happens, it will be public, and it will be painful, not only for the appointee and the governor, but
also for the Senate and the judiciary. Critics of Senate confirmation contend that any rejection of an appointee will discourage other qualified individuals from applying for future
judicial positions.
The Senate acknowledged this risk, but our options were limited:
- continue with a perfunctory Senate confirmation process and risk allowing some inadequately qualified judicial candidates to take office; or
- exercise the duty of Senate confirmation in a manner that provides a useful review of the qualifications, background, and temperament of judicial candidates and risk producing a
chilling effect on future applicants.
A constitutional duty should not be neglected on the basis that someone might not apply for a future judicial position. In fact, the very purpose of Senate confirmation is to prevent an
unfit candidate from taking office, even if that candidate has the support of a nominating commission and the governor. The system would be even better served if such candidates simply
did not apply. If Senate review results in someone who appears to be qualified deciding not to seek judicial office because of drug or alcohol abuse, for example, for conduct that
demonstrates a lack of honesty or integrity, or because the candidate has demonstrated a lack of a judicial temperament in their professional dealings, then the Senate would consider its
process successful.
At the same time, however, it is understood that an overzealous confirmation process that is either inconsistent or arbitrary in its decisions would likely
produce the undesired result of chilling applications of those who are actually qualified. Herein lies the dilemma: can the Senate make an independent assessment of all judicial
candidates without having a chilling effect on the actually qualified applicant pool? The Senate thinks it can make such an assessment without the negative effects. Its critics
apparently think it cannot, or at a minimum that an increased review is unnecessary, considering that the nominating commissions and the governor provide a substantial review already.
D. Only the Finest Candidates Should be Judges
While it is true that judicial candidates face substantial scrutiny, it seems that in a few isolated cases, the review was
apparently not rigorous enough. While merit selection clearly establishes a more independent judiciary than a contested elected judiciary, no selection process is likely to produce a
judiciary entirely free of judicial misconduct. This is one reason the system has judicial performance standards, regular judicial evaluations, certification, and retention elections.
Additionally, the Judicial Conduct Commission is required to investigate complaints and discipline errant judges under Supreme Court review; and ultimately, in the unlikely event that all
of this fails, the legislature holds the power of impeachment.
Still, the more reasoned strategy to create an independent judiciary is to select as judges only the very finest
judicial candidates. By commending our best lawyers to the bench, a merit-based selection process can reduce the need for judicial discipline, under the correct assumption that the finest
candidates will know, understand, and be capable of living under the Code of Judicial Conduct. Better judges naturally increase confidence in the judiciary. Conversely, however, nothing
is more corrosive to an independent judiciary than a corrupt or unethical judge, or to a lesser degree, but critical nonetheless, a judge with a poor judicial temperament. One's legal
knowledge or professional experience is of little consolation when public confidence is shaken by poor judicial behavior. In these situations, the corrosion can be minimized nonetheless
with a disciplinary system that provides a level of judicial accountability that engenders public trust and confidence.
E. Confirmations Must be Consistent and Fair
To
ensure that the Senate confirmation process is predicated on principles of fairness, Senate Rule 24.04.1, governing the procedures of the Senate confirmation committee, was modified by
unanimous vote in February, 2003 to provide that every judicial candidate is to be interviewed prior to a confirmation vote by the full Senate.10 Formerly, the Senate had only occasionally interviewed judicial candidates.
The modified rule now provides that upon receipt of the governor's appointee, each Senator is to receive the appointee's resume. A press release is also sent to the news media
which contains a brief description of the position which is being filled, the name of the appointee, and a request that members of the public who want to comment on the appointee contact
the Office of Legislative Research and General Counsel by the established deadline. Along with the press release, the appointee's resume is also to be provided to the news media.
i. Information Is Key
To facilitate an interview with each judicial candidate, the Senate felt it needed more than the appointee's basic resume if it were to effectively
evaluate the appointee's credentials. To properly evaluate each appointee, the Senate requires identical information on the candidate as is received by both the Judicial Nominating
Commission and the Governor. Additionally, the Senate looks at any legal publications authored by the candidate, and the written judicial opinions of a candidate who holds or previously
has held judicial office. This information not only reveals the candidate's writing ability and provides insight into the candidate's legal analysis, but in the case of candidates who
have authored legal opinions, it provides insight into the candidate's willingness to rely on legal precedent and reveals a tendency toward judicial activism.
To ensure access to a
candidate's application materials, the Legislature passed S.B. 165, "Gubernatorial Nominee Amendments," which detailed the following information the Senate needed from the
Governor so that it could evaluate the appointee's credentials:
- the appointee's complete file of application materials;
- all reference letters;
- the results of any investigations into the character, ability, health, fitness, temperament, or experience
of the candidate; and
- comments submitted by the public either in support or opposition to the candidate.
Although Governor Leavitt was willing to forward the information he received about the candidate from the Judicial Nominating Commission, he was reluctant to provide the Senate with the
results of the information he may have obtained independently. On that basis, the Governor vetoed S.B. 165, "Gubernatorial Nominee Amendments."11 Notwithstanding the veto, the Senate Confirmation Committee currently receives an appointee's judicial application, along with reference letters, the results of any investigations conducted by the nominating commission, and comments received by the nominating commission and the governor (unless, in the case of comments directed to the Governor, the author has requested that the comments not be distributed beyond the Governor's office).
ii. Additional Investigations
The modified rule also permits the chair of the Confirmation Committee to direct legislative staff to investigate the background,
qualifications, and fitness for office beyond what is contained in the application materials. The chair of the Senate Confirmation Committee used this authority during the appointments of
the two Supreme Court Justices to have staff summarize former legal opinions and conduct a confidential interview with both state and federal judges as well as other respected
professionals in the business and legal community who were in a position to evaluate the candidates.
iii. Privacy Policy
The application materials and other related
documents, including written comments from the public and the results of any internal investigations, are only provided to the President of the Senate and the members of the Senate
Confirmation Committee, who are required by rule to ensure that the information they receive has been properly classified under the Title 63, Chapter 2, Government Records Access and
Management Act, and that information may not be released except as provided by statute.
Moreover, the Chair of the Confirmation Committee is required to classify all the documents
in the committee's possession as either "public" or "private," using the standards contained in Utah Code Ann. 63-2-302(1)(e)(i). Only letters received by the Senate
in response to its press release are within the discretion of the chair to classify as "public" and then, only if the author of the letter has not requested the information to
be confidential. Approximately six judges have been confirmed under these rules and only one letter has been released beyond the President of the Senate and the members of the
Confirmation Committee, and that was done at the request of the author who had asked that the letter be delivered to the full Senate.
Potential judicial candidates need to
understand that, as President of the Senate, I am committed to a dignified and professional investigation into each judicial candidate's background so that the Senate may come to an
independent conclusion as to whether or not the candidate meets the criteria for becoming a judge. Those criteria include: legal knowledge and ability, judicial temperament, experience,
integrity, health, financial responsibility, and history of public service. Candidates who possess these qualities and who are honest and candid during the confirmation process have no
reason to fear the Senate confirmation process.
Senate Confirmation is designed as a means to scrutinize judicial candidates in a manner that promotes public confidence in the
judicial selection process without creating an unreasonable fear of unfair or politically motivated confirmation decisions. The best way for the Senate to accomplish this objective is to
meet its constitutional duty in a manner that even its critics will agree is consistent, objective, and fair.
F. Recent Confirmation of Supreme Court Justices
During the
2003 Legislative General Session the Governor appointed two new members to the Utah Supreme Court: one appointee was an Assistant United States Attorney, and the other the Presiding Judge
of Utah's Third Judicial District. The newly reconstituted Senate Confirmation Committee received for the first time detailed information on each candidate, which included the application
materials, criminal background check, credit report, standardized reference letters, a writing sample, dozens of letters from people who responded to the press release seeking public
comment, and summaries of internal staff investigations.
As part of the investigations, legislative staff was instructed to provide a summary of every judicial opinion written by
the judge and a search was conducted to obtain published articles written by either of the candidates. Staff was instructed to conduct a confidential interview with individuals who were
deemed to be in a position to evaluate the candidates.
All of the documents along with summary information obtained from the confidential investigations were classified as private
documents under Utah's Government Records Access and Management Act. Under this classification, the documents could be reviewed only by members of the Senate Confirmation Committee and
the President of the Senate. Other Senators were denied access to the information and the results of the investigations were distributed to the committee in summary form, void of any
identifying information of those who were interviewed.
Shortly after the distribution of these materials, the candidates were interviewed under oath in a meeting open to the
public. The interview started with an opening statement from the appointee, which included an explanation of the appointee's motives for seeking judicial office.
Members of the
Senate Confirmation Committee questioned each of the appointees for a total of approximately three and one half hours during two separate interviews on topics which included judicial
philosophy, their individual approach to legal analysis, separation of powers, and judicial activism. One of the candidates had health concerns which the committee explored with the
candidate's physician, and there were some questions regarding the candidate's legal opinions and published articles.
i. Ethics and Political Interview Questions
In the May 2003 Bar Journal, former Justice Russon wrote: "[w]hen nominees abide by the Code of Judicial Conduct and refuse to answer pointedly political questions during the
confirmation process, they are not doing so to spite or circumvent their legislative inquisitors. The rules of judicial ethics regarding answering such questions or taking such political
stands are designed to preserve the impartiality of the judges and the courts."12 Justice Russon's observation is correct when the questions placed to judicial candidates are purely political questions. But Senator D. Chris Buttars contends questions on the death penalty and abortion are not purely political questions.
Consider, for example, Justice Jill N. Parrish's response to Senator Buttars' question on abortion: "On the 30th Anniversary of Roe v. Wade, what is your view of that U.S. Supreme Court decision?" Response: "It is my understanding that Roe
v. Wade, as modified by the Casey decision, is decided and established law. Whether or not I personally agree with the law is not the issue. If confirmed I would have no choice but to apply and enforce the law. Again, my personal views would not come into play. Given this proceeding, Canon 5 of the Code of Judicial Conduct would prohibit me from taking a political stand on the issue."13
Likewise, consider Justice Ronald E. Nehring's response to Senator Buttars' question regarding the death penalty: "Utah has a death penalty law. Talk to me about your
philosophy on that." Response: "It is absolutely constitutional and I will tell you there has been no more solemn a day in my judicial life than the day I signed a death
warrant. It is not a happy experience, but it is one I did then and would do again if the law requires it. There is nothing in our law or in our constitution that suggests that there
should be some deviation from the settled law considering the constitutionality of the death penalty."14
It would have been a clear violation of the Code of
Judicial Conduct for either candidate to make a pledge or promise of future conduct in office by indicating how they would rule in future cases.15 This is not to say, however, that the only appropriate response is to refuse to answer the question on the grounds that any response would be a violation of judicial ethics. Even seemingly pointed political questions can be answered with a legal analysis of existing case law, with an emphasis on how the candidate will execute the duties of judicial office in a faithful, impartial, and diligent manner, notwithstanding whatever personal views the candidate may have.
Some readers may incorrectly assume that since these questions were asked by a politician, the clear expectation is that the answers must provide insight into the candidate's
political view. An even broader assumption would be that a candidate's confirmation will be conditioned on one's ability to align oneself with the political views of those who pose such
questions. Both of these assumptions are unwarranted.
During a recent panel discussion sponsored by the Utah State Bar titled, "The Judicial Selection Process: Dispelling the
Myths - Discussing the Facts," Sen. Buttars publicly indicated that the questions he asked on the death penalty and abortion have both a political and a legal component. Although he
acknowledged the political answer to both of these questions would be of interest to him personally, the question is asked, he said, to determine whether the candidate has taken a
position on these issues.
As noted earlier, neither candidate provided a political response to the questions asked of them, yet Sen. Buttars voted in favor of each candidate. In no
sense, therefore, can Sen. Buttars specifically, or the full Senate generally, legitimately be accused of requiring judicial candidates to pass a political litmus test. It is simply
unnecessary for a candidate to invoke the shield of the judicial canons by refusing to answer seemingly pointed political questions, since a legal analysis of the question, whether it be
abortion or the death penalty, with an explanation of the current state of the law, combined with a promise to faithfully execute the duties of judicial office, notwithstanding one's
personal views, has proven sufficient.
On a separate issue, since the Code of Judicial Conduct applies equally at all stages of the selection process, not just at the Senate
Confirmation level, members of the Senate Confirmation Committee are likely to follow-up on questions in which a candidate invokes the judicial canons with an additional question relating
to whether or not the candidate had been asked a similar question by the governor, and if so, whether the Code of Judicial Conduct was invoked during those interviews.
Certainly a
candidate for judicial office should expect some difficult questions, but even seemingly pointed political questions can be appropriately answered if the candidate tailors the response
with candor and care. After the interviews, both the appointee and senators seem genuinely impressed with one another's diligent efforts to perform their respective constitutional roles.
After the Senate had confirmed both Justices Nehring and Parrish, each addressed the Senate. In his comments, Justice Nehring told the Senate that the confirmation committee had
conducted a "uniquely rigorous inquiry into the qualifications of both candidates." He explained that he stood before the Senate "as someone with no complaints."
"It was fair, it was even fun," he said. Moreover, he noted that the "senators were gracious and the questions were appropriate."16
Justice Parrish
noted that after she had heard that she would be asked questions "over the course of a series of hearings" that she was "more than a little nervous." In an attempt to
relieve her anxiety, Justice Parrish explained that she obtained and read transcripts from the Senate Confirmation Committee on the federal level. While reading those transcripts did not
necessarily relieve her anxiety, that exercise did enable her to conclude that the State Senators were "no less prepared, in fact, better prepared and asked more thoughtful questions
than the majority of their federal counterparts." Justice Parrish also reported that the Senate's process was not only fair, but that it gave her an "appreciation for the
magnitude of the responsibility" that she was undertaking.17
Tension Between the Branches
Certainly a natural tension among the three branches of state
government exists by design. For those with experience on the front lines of state government, these tensions can often become quite taut. What is most interesting about the Utah Senate's
attempt to enhance its confirmation procedures is that the additional scrutiny of judicial candidates may actually serve to release tensions between the judiciary and the legislature
through a measure of mutual respect.
As judicial candidates progress through Utah's confirmation process, there is opportunity for them to gain a better appreciation for the
legislative perspective on issues of general interest to the legislature. Undoubtedly, judicial candidates will come to a greater appreciation of the difficulty of answering tough
questions under oath. Legislators are also in a position to gain a better understanding of the responsibilities of judges, the inherent ambiguities in the law, and the need for judicial
interpretation, which may help legislators become more understanding, and less critical of the judiciary generally.
There is clearly room in Utah for both the legislative and
judicial branches to grow in respect for each other's roles in the overall scheme of state government. Over time, honest differences of opinion may arise between the branches regarding
the selection process. For a merit-based selection process to work most effectively, it is incumbent on the nominating commissions, the governor, and the Senate to resist the temptation
to allow partisan politics to enter into its selection decisions.
Since the Senate decided to provide more scrutiny to judicial nominees, the Governor has been under greater
pressure to select candidates that will withstand Senate inquiry into their background, character, and general fitness for office. This situation has created some additional tensions
between the Senate and the executive branch, but both the Senate and the Governor are attempting to work through the situation in a thoughtful manner.
Conclusion
The
doorkeepers in Utah's judicial selection system include the judicial nominating commissions, the governor, the Senate, and the electorate when voting in retention elections. A legitimate
Senate process will cause candidates to reflect upon their motives for seeking judicial office. Upon this reflection, it is my desire that judicial candidates will have the same
experience as Justice Parrish, who told the Senate after her confirmation that she thought that she will "be a better Justice for having gone through the Senate confirmation
process."18 I am of the opinion that the self-introspection required by the Senate confirmation process will assist in making great judicial candidates exceptional judges.
In my opinion, Utah's merit-based system promotes judicial independence to a much greater degree than any other judicial selection system. As each component of this merit
selection process focuses on its duty to the system, the people of Utah will continue to have their legal matters heard and resolved by bright, capable individuals who are serving as
judges not only because of their exceptional legal and professional abilities but also out of a personal desire for public service.
Footnotes
1. FRANZ KAFKA, THE TRIAL (William & Edwin Muir trans., Shocken Books 1995) (1925).
2. Standards on State Judicial Selection, Report of the Commission on State Judicial
Selection Standards, American Bar Association Standing Committee on Judicial Independence, 7 (July 2002).
3. State Court Organization 1998, Bureau of Justice Statistics,
Office of Justice Programs, U.S. Department of Justice (June 2000).
4. Utah Senate Floor Debate, 1984 2nd Spec. Sess. (March 27, 1984) (statement of Chief Justice Hall).
5. Utah Const. art. VIII, ¤¤ 8, 9, 13.
6. Call to Action, Statement of the National Summit on Improving Judicial Selection, National Center for State Courts (2002).
7. Utah Senate Floor Debate, 1984 2nd Spec. Sess. (March 27, 1984) (statement of Associate Justice Dallin Oaks).
8. State Court Organization 1998, Bureau of Justice Statistics,
Office of Justice Programs, U.S. Department of Justice (June 2000).
9. Senate Confirmation of Judicial Appointments, Office of Legislative Research and General Counsel, Utah
Legislature 2 (November 2002).
10. S.R. 6, 55th Leg., Gen. Sess. (Utah 2003).
11. Veto Letter from Governor Michael O. Leavitt, to President L. Alma Mansell and Speaker
Martin R. Stephens (March 24, 2003), available at: http://www.utah.gov/governor/newsrels/2003/newsrel_0324a03.html#2.
12. Justice Leonard H. Russon, The Constitutional Guarantee of an Independent Judiciary, Utah Bar J., May, 2003, at 22, 26.
13. Utah Code of Judicial Admin., ch. 12, Code of Judicial Conduct, Canon 5 (2003).
14. Utah Senate Judicial Confirmation Committee (Feb. 12, 2003) (statement of judicial
nominee Jill N. Parrish in response to question by Senator D. Chris Butters) (emphasis added).
15. Utah Senate Judicial Confirmation Committee (Feb. 12, 2003) (statement of
Judicial nominee Judge Ronald E. Nehring in response to question by Senator D. Chris Buttars).
16. Utah Senate, Committee of the Whole (Feb. 26, 2003) (statement of Justice Ronold E. Nehring to the Utah Senate).
17. Utah Senate, Committee of the Whole (Feb. 26, 2003) (statement of Justice Jill N. Parrish to the Utah Senate).
18. Utah Senate, Committee of the Whole (Feb. 26, 2003) (statement of Justice Jill N. Parrish to the Utah Senate).
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