Minorities win with Utah's judicial selection process

In a recent column, Mike Martinez took aim at Utah's system of judicial appointment and retention. His misinformed assumptions and misguided con- clusions were seriously off target.

Let's start by setting the facts straight. Martinez asserts that Utah had elected judges until the mid-1980s and then imagines the emergence of a pattern of racial and ethnic bias in the selection of judges since that date. History is not kind to his claim. In fact, the Legislature instituted the present process of judicial appointments in 1967. Christine Durham, the current chief justice of the Utah Supreme Court and the first woman to sit on the high court, was originally appointed, not elected, to the trial bench by Gov. Matheson in 1978.

Utah's first African-American judge, Tyrone Medley, came to the bench in 1984 through our merit selection and appointment process, not by election. The notion that choosing judges by contested elections will lead to greater minority representation is counter- intuitive in a state with Utah's demographics.

But there are more important policy reasons why we should be proud of our judicial selection system. It is a carefully crafted process that promotes merit, independence and accountability. First, judge candidates are screened by a bipartisan nominating commission of lawyers and lay people. I have served on nominating commissions and have witnessed their work. Our discussions focused on experience, temperament and judgment, not on politics. Before submission to the governor, the list of nominees is released for public comment. The governor then conducts personal interviews and forwards his appointee to the Utah State Senate for its advice and consent. The Senate has full power to turn away any candidate it finds unacceptable.

Contrast this system of checks and balances with the judicial elections held in some other states. I have a brother who practices law in a state where aspiring judges run for office in contested political races. They are subject to the same pressures that plague all politicians. They hold fund-raisers, hire campaign consultants and pay public relations firms. And, as is too often true in politics, the focus of a campaign frequently shifts from substance to style and from ideas to image. Worse, the corporations and law firms that were last month's campaign contributors may be next month's litigants, with all the attendant concerns for conflicts of interest. In a recent race for a state supreme court seat, one candidate spent millions of dollars. Big money can bring big baggage.

In Utah, we subject sitting judges to periodic retention elections. Their names appear on the ballot in uncontested races, and we either vote them up or vote them down by simple majority. The only issue is whether we think they're doing a good job, not whether an opponent has run a convincing campaign. The alternative in which judges run for re-election against an opponent creates serious consequences. We expect our judges to be independent, beholden to no one. We prize the ideal of "blind justice," symbolized by the familiar statue that stands before the U.S. Supreme Court.

But as anyone who has lived in a state with contested judicial elections knows, the prospect of an up-coming political race can dampen the courage of a judge who must decide a tough case. The last thing we should want is a judge looking over his or her shoulder at the potential political consequences of offending this or that constituency.

In the end, it's as simple as this: We don't expect judges to act like legislators, and we shouldn't treat them like legislators. Not to say that judges, like all public officials, shouldn't be held accountable for their conduct. Of course they should.

There are other ways to ensure accountability than through the hurly-burly of contested political elections. One way is through our current retention election system. Another is through the work of the constitutionally created Judicial Conduct Commission, a group of citizens that investigates any charge of misconduct and recommends discipline, including removal, where appropriate. The Legislature is constantly struggling to fine tune the structure and function of the commission to balance the sometimes competing demands of judicial accountability and independence.

Consider this: When the founding fathers crafted the American Constitution, they also struggled to create a federal judiciary that was both independent and accountable. They valued independence so highly that they settled on judges with life-time appointments, subject only to impeachment. We honor the wisdom of their foresight. Without independent federal judges, desegregation across our country would have been longer delayed than it was.

One of our most respected federal judges in Utah, David Winder, has in his chambers a print of the famous Norman Rockwell painting of a little African-American girl boldly striding into her newly desegregated elementary school. He hung it to remind himself of the courage that is fostered by judicial independence.

Our state judges do not enjoy lifetime appointment. They have to stand for retention elections, and they are answerable to the Judicial Conduct Commission. As Utahns, we have struck a middle- ground between the wholly independent federal judiciary and those states in which judges run for office like mayors and city council members. It is a balance that has served us well. Its wisdom is evidenced by the latest proposed appointments to the Utah Supreme Court. Jill Parrish is a woman of powerful intellect and demonstrated ability. Judge Ronald Nehring is a highly regarded trial judge with years of experience. Both must now face the Utah Senate and win confirmation. If they do, as I believe they should and will, it should also confirm our confidence in the quality of our process.

David Jordan, a Salt Lake attorney in private practice, is chairman of the state Appellate Judicial Nominating Commission and former U.S. Attorney for Utah.

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