Opinion: Utah should retain its judicial selection and retention system

Moving to an elected judicial system would risk reducing the quality of the judiciary for the possibility that more judges would have the “right” political views.

The Utah Legislature should refrain from “reforming” Utah’s excellent judicial selection and retention system.

Our “merit-based” system was adopted in 1985, the culmination of a long process begun in 1945 to establish a selection system devoid of partisan influence. Our Constitution requires selection of judges be “based solely upon consideration of fitness for office without regard to any partisan political consideration.” A nominating commission winnows applications and forwards a short list to the governor, who selects the final candidate, which the Senate must confirm.

The application process is robust. Applicants must not only give their education and work history but also provide judicial and attorney references — including lawyers who have been adverse to the applicant, and for judge applicants, attorneys who have appeared before them. After screening, the commission interviews applicants. Before certifying the list of nominees to the governor, the commission publishes the names for public comment and may remove a name if the commission receives new information that the applicant is unfit to serve as a judge.

Finally, all judges stand for retention election after a number of years. Before that retention election, there is a robust performance review conducted by the Judicial Performance Evaluation Commission, or JPEC. JPEC surveys lawyers, court staff and jurors; gathers data regarding judicial education, time standards and discipline; accepts public comments; and conducts courtroom observations. Judges are rated on a five-point scale regarding legal ability, integrity and temperament, administrative skills and procedural fairness, and a ranking of 3.6 or higher is required to meet the standards for retention. Commissioners use a “blind” evaluation process in reviewing materials and voting on whether each judge has met the standards for retention. All this material is made available to the public prior to a retention election. Judges may decide not to stand for retention election after they have reviewed their performance evaluations and JPEC’s recommendation.

Utah’s system of selection, review and retention is a national model. Professor Jordan Singer, consultant for the Institute for the Advancement of the American Legal System, states:

“The Utah Legislature wisely committed to a comprehensive judicial performance evaluation program. That program is a national leader today, helping Utah’s judges improve on the bench and helping Utah’s citizens maintain the accountability of their judiciary. The JPEC is an outstanding model of thoughtfulness, balance, and vigilance in the service of the broader public. Utah has a remarkably effective and trustworthy system for selecting, training, and maintaining the accountability of its judges.”

Forty years ago, I moved to Utah to oversee the University of Utah College of Law internship program, which I did for over three decades. Each semester, I received multiple reports from our students about their experiences and what they were learning. They were uniformly impressed that their judges were intelligent, hardworking, thoughtful and ethical, and came away from their internships with high respect for the jurists. Judges also made presentations to classes I taught. I was able to observe our judiciary from a unique perspective and was consistently favorably impressed by the high quality of our Utah judiciary.

Moving to an elected system would jettison all the merit-focused work of nonpartisan nominating commissions. It might mean fewer excellent people would be able to mount a campaign. It would surely require that funds be raised and time be spent campaigning, taking judges away from their central job. It would create ethical challenges, as judges could be asked to hear cases brought by companies or law firms who had contributed to their campaigns. Judges would have little incentive to participate in the judicial performance evaluation process, since their retention would be based in politics, not an objective assessment of their performance. Presumably judges would campaign on political positions thought to appeal to the public. But since the vast bulk of a judge’s or a justice’s work is not “political” in the traditional sense, such a system would risk reducing the quality of the judiciary for the possibility that more judges would have the “right” political views. This would be a step in the wrong direction.

The Utah Legislature should not try to fix a problem that doesn’t exist.

Source: Utah News