Bob Bernick, Utah Policy Contributing Editor
There were some interesting personal and partisan politics going on behind the scenes in Wednesday’s showdown: governor vs. Senate Republicans, Democrats vs. Republicans, Republicans vs. Republicans.
In the end, Herbert and Chon won.
In addressing the Senate after the vote, Chon promised to work hard and in several years she hopes all of the Senate will be proud of her judicial record.
Senate Majority Leader Scott Jenkins, R-Plain City, who voted against Chon twice, first in Monday’s Judicial Confirmation Committee hearing and again Wednesday on the floor, said there was no hard feelings against Chon, and he hoped the best for her in her new career.
But some lessons no doubt were learned.
First, it’s clear some GOP senators were telling Herbert – who is expected to win a four-year term on his own this fall – that he had better send up judicial nominees with more experience.
Second, some of the GOP senators who voted for Chon may find some hard feelings inside the 22-member Republican caucus for standing with Herbert and all the Senate Democrats instead of with their caucus leaders (Jenkins; retiring Senate President Michael Waddoups, R-Taylorsville; and Majority Assistant Whip Pete Knudson, R-Brigham City; all voted against Chon. Majority Whip Wayne Niederhauser, R-Sandy, voted for her).
Sen. Lyle Hillyard, R-Logan, is an attorney who has long been a strong supporter of the state judiciary and judges in general.
Hillyard voted for Chon in Monday’s confirmation committee hearing.
But he switched and cast a “no” vote on the floor Wednesday.
Asked why, Hillyard said that he was a “soft yes” in the committee because he was concerned about Chon’s relatively weak resume.
But mainly, said Hillyard, he decided that he wasn’t going to be one of the Republicans who joined with Senate Democrats to approve a gubernatorial nominee opposed by a majority of the Senate Republicans.
In the end, Hillyard observed, Chon had reached the needed 15 votes for confirmation before he cast his vote, so his didn’t decide her fate.
As it happened, Senate Republicans split their vote on Chon (10 voted against her, 10 voted for her and two GOP senators were absent.)
All seven of the Democratic senators vote for Chon.
The individual vote tally on Chon is at the end of this story. It was 17-10-2 with two GOP senators absent from Wednesday’s interim study day, which is usually also a Senate vote confirmation day.
Waddoups and Jenkins, who run the floor action, handled the Chon vote in a different manner Wednesday (although perfectly within the rules).
After her name was read in by the clerk, there was no debate on her nomination. Instead, following Senate rules, as the name of each senator was sounded in the vote roll call, those who wished to say something for or against her could “explain” their vote before they cast it.
Thus, while senators who wished could say something about Chon and/or Herbert and the nomination process, they couldn’t ask questions of other senators nor engage in open debate, as is usually the case before a vote is taken.
Sen. Margaret Dayton, R-Orem, in explaining her “no” vote complained about how the Chon issue had been presented in the press.
It was sad and wrong that one may be seen as for or against Chon because of her ethnicity, said Dayton. (Chon is American-Korean and introduced her parents to senators when she addressed the body later.)
“I was offended,” said Dayton, when she opened her morning Salt Lake Tribune to see a “sweet” picture of Chon on the front page with a headline that said senators were rejecting Herbert’s only minority judicial nominee.
“You shouldn’t be judged on your ethnicity. Is this what we’ve come to? I didn’t even finish reading the article,” said Dayton.
Qualifications and merit should decide a gubernatorial nominee in the Senate, not the color of one’s skin or ethnicity, Dayton said.
She said she agreed with the majority of the confirmation committee that while Chon may be a wonderful person, she didn’t yet have the experience needed to be a judge.
However, as the news of the confirmation committee’s Chon “no” vote spread, the politics of the situation quickly took over some of the reasonable arguments, which can often happen in an election year.
Chon is a woman and a minority. She is Herbert’s first judicial appointment of a minority. And he’s been criticized for not appointing more women and minorities to state boards and to the bench.
It is often good politics, especially in a gubernatorial election year like 2012, for a governor to be seen taking on the old conservative bulls of the GOP-controlled Legislature.
So, Herbert jumped at the chance to defend Chon, and in so doing angered some GOP senators.
One example: UtahPolicy Monday afternoon, soon after the Senate Judicial Confirmation Committee voted 4-2 NOT to recommend Chon to the whole Senate for confirmation, asked Herbert for a comment on that action.
The governor’s office didn’t respond until 11:45 p.m. Monday. And when it did, it sent the response as a “blast” to 250 members of the Utah media.
Immediately, the hounds were on the scent, as Herbert’s office clearly desired.
More press releases from Herbert’s office followed Tuesday providing background on Chon and endorsements for her nomination by leading citizens and attorneys around town.
Those “blast” e-mail responses, Senate sources said, put some GOP senators on the defensive. Herbert’s office, they feel, clearly raised the level of the disagreement by publicizing the “no” recommendation committee vote, and bringing up Chon’s ethnicity.
But in fact, because the Senate confirmation committee has not made a “no” recommendation on a judicial nominee in recent memory, the Chon vote was in itself news making. Still, certainly Herbert’s e-mail “blast” set up a public discussion of the event.
In any case, the Monday vote, and the Senate confirmation vote on Wednesday, was widely reported by Utah media.
Sen. Stuart Reid, R-Ogden, said before casting his “no” vote Wednesday that the process of judicial nominations/confirmations may need to be looked at.
Reid, a non-attorney, said he would appreciate some kind of “third-party review” of judicial nominations, made both before Herbert makes a selection from the names sent up to him by a judicial nominating commission, and before the Senate conducts confirmation hearings and floor votes.
Reid said perhaps some of the attorneys in the Senate could work on that issue before the 2013 Legislature.
On another sensitive matter dealing with Senate confirmations, at the last minute Wednesday two names were pulled from the confirmation list for the state Radiation Control Board.
Historically, the waste management industry representative on the board has NOT been an employee of EnergySolutions – the big waste disposal company with facilities in west Tooele County.
That is because, Senate sources say, 85 percent of the issues that come before the board deal with the West Desert dump and burn operations of EnergySolutions.
But Herbert sent up the name of Daniel Brian Shrum, an EnergySolutions employee, to the Senate for appointment to the board.
Democrats, edged on by environmental groups, objected to that.
In a compromise worked out by Sens. Ralph Okerlund, R-Monroe, and Gene Davis, D-Salt Lake, Shrum’s name was removed from the list Wednesday along with the name of the citizen/environmental nominee to the board, Sarah Mulock Fields.
A special Natural Resources Confirmation Committee hearing will be held on both those folks and more information gathered, sources said.
Those names likely will be submitted at a September Senate confirmation vote.
The names of two new liquor board members and confirmation of interim DABC boss Sal Petilos were also delayed from a vote Wednesday because Sen. John Valentine, R-Orem, a leader in state liquor law reform, is out of town.
After the DABC scandal of last year, which led to the firing of the then-liquor division director, a 2012 liquor reform law calls for a number of changes in alcohol beverage operations, including an expanded liquor board membership.
Those names will be considered later, also.
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