House approves measure that prohibits consideration of race and gender in judicial nominations

Utah State CapitolIn his seven years in office, Gov. Gary Herbert has been criticized for not appointing more women and minorities to the state court bench.

Although Herbert denies the charges, it won’t be any easier for him to nominate qualified minorities and females if HB93, which passed the House on Wednesday, becomes law.

The bill is simple in concept, far-reaching in impact.

Plainly put, says sponsor Rep. Merrill Nelson, R-Grantsville, the Utah Constitution says the only qualification allowed in considering someone to be a judge is solely their fitness for office.

Even broadly interpreted, that does not mean you can consider their gender or race – and to do so is unconstitutional.

The executive branch of government – specifically the Commission on Criminal and Juvenile Justice (under the Herbert administration) has adopted rules for judicial nominations that include race and gender, to be considered if an applicant meets other requirements.

Not only, says Nelson, does the CCJJ not have the constitutional authority to add judicial requirements – only the Legislature can do that – by adding race and gender they have violated the state Constitution.

After a spirited debate, most House Republicans agreed with Nelson. HB93 passed, 47-25, with all Democrats voting against it, along with 13 Republicans.

You can read the bill here, and the amended language further outlining judicial qualifications here.

Rep. Lowry Snow, R-Santa Clara, an attorney like Nelson, has served on a judicial nominating committee – which sends names up to the governor to pick from — and chairman of the judicial evaluating commission – which judges the judges.

Snow is against HB93, saying once a pool of applicants for a court vacancy have passed muster on experience and other qualifying criteria, it is appropriate to consider race and gender – because the Utah bench filled with excellent judges, mostly white males, can be enhanced by further diversity.

We shoot ourselves in the foot by not considering race and gender, says Snow.

Rep. Rebecca Chavez-Houck, D-Salt Lake, one of the few female minorities in the House, said Hispanics make up 13 percent of Utahns, but 18.4 percent of those in jail, while Blacks make up 1 percent of the population, but 6.3 percent of inmates.

Clearly, something is going on with those statistics, she said, and couldn’t the judiciary be better served with qualified women and minorities on the bench, for they may see “justice” in an expanded light.

Perhaps, admitted, Nelson. But the Constitution is clear – only the Legislature, not the executive branch, can set judicial qualifications – and, anyway, race and gender can’t be considered under our governing document.

If the Legislature wants to consider race or gender in picking judges, then change the Constitution, and then change the law, he added.

The bill prohibits the CCJJ from placing any qualifications on judicial nominating in the future, outside of the language of HB93.

The bill now goes to the Senate.