The Utah Senate recently came under criticism for its judicial confirmation process. I was not present for the August confirmation vote, but I think a quick review of some history might be helpful to put this constitutional process in perspective.

In 2002, Senate President, Al Mansell asked the Office of Legislative Research and General Counsel to review the Utah Senate’s constitutional role in the judicial confirmation process. The primary purposes of this review were to determine what should be done to deter the appointment of unqualified judicial candidates and to evaluate whether the Senate was fulfilling its constitutional role properly.

As some may remember, in the mid 1990s through early 2000s, several judges who had been appointed without a careful confirmation examination later engaged in misconduct that was unbecoming of a judge. In this review, the Senate decided that some of the fault for those poor appointments rested with the Senate which was not then conducting an independent review of the governor’s appointments.

Here’s a November 2002 briefing paper that summarized the issue.

We learned that in the confirmation process, at that time, the Utah Senate relied on the least amount of information and was the most informal of any other state in the nation that selected its judges by gubernatorial appointment with a senate confirmation.

As a result of the review, the Senate decided in 2003 that it would make a thorough, independent review of judicial appointments. What the Senate has learned since implementing our new confirmation committee process is that not all judicial candidates are commended to the Senate with the same level of education, experience, demeanor, and integrity. There are many extremely well qualified candidates, and Utah should be proud of its judiciary. Nevertheless, governors have sometimes appointed candidates that have not been as qualified as the Senate would like.

Looking back, increased Senate scrutiny has in fact resulted in the withdrawal of some candidates and the denial or near denial of others. When this happens, to quote President Mansell, "it is public, and it is painful, not only for the appointee and the governor, but also for the judiciary and the Senate."

The Senate is committed to a dignified, professional, and respectful confirmation process. This does not mean that every person appointed by a governor will be confirmed, nor does it mean that every person who is confirmed will receive a unanimous vote from the Senate. In fact, the Senate has voted to not confirm at least one judge, and at least two others have withdrawn their name from consideration to prevent a potentially embarrassing public confirmation debate. The rules of the process prevent the Senate Judicial Confirmation Committee from disclosing most of the reasons for its decisions in these cases to protect the privacy of the applicants.

Critics of the Senate, including journalists, have their own opinions about who should, and who should not be appointed by the governor and confirmed by the Senate. This is, of course, their prerogative. But keep in mind that senators represent all people in each of our districts, and a judge’s work will have direct impact on the lives of many of our constituents.

This process is the last safety mechanism The People of the State of Utah have, through their elected senators, before a judge becomes permanent.  I believe the process works. Critics miss the point entirely when they attack the confirmation process by ridiculing Senators for their employment history or by questioning the motives of the Senators involved. When discussing the Senate’s judicial confirmation process, the substantive questions should always be whether or not the Senate provided a dignified, professional, and respectful confirmation process, and rendered a confirmation decision by majority vote based solely on the appointee’s fitness for office, without regard to any partisan political considerations.

For further information on the senate confirmation process please refer to an in-depth article written by Senate President Mansell and Jerry Howe: “Before the Bench: The Utah Senate and Judicial Confirmation,” Utah Bar Journal, Volume 16, No 7.