• In our constitutional system, a critical qualification of a judge is a willingness to adhere to the Constitution.
• Utah’s judicial selection and retention process appropriately focuses on basic competence but gives little or no attention to critical questions about judicial philosophy and dedication to the Constitution itself.
• Any reforms to this process must prioritize constitutional allegiance.

What makes a good judge?

At the very least, a judge should be “independent, impartial, and competent” and dignified, as Utah’s Code of Judicial Administration explains.

In some states, judges are elected directly by voters, but in states like Utah, other branches of government play an important role in nominating and confirming justices. Those officials need to have an idea of what makes a good judge. In Utah, as in other states, voters also vote on whether to retain judges after they have served for some time. So, citizens also would benefit from understanding qualities a judge must possess to be effective in their role.

The roles of judges differ based on the responsibilities of the courts they belong to, with judges who preside in trials and judges who hear appeals possibly needing some different qualifications. The specific subject matter they deal with is also important. For instance, judges may need to approach a constitutional dispute differently than other cases.

The U.S. Constitution created a Supreme Court and allowed Congress to create lower courts. The baseline – and really the sole – enumerated qualification was “good behavior.” This innovation promoted the independence of federal judges from the other branches of government. (Those branches, however, would have important roles in nominating and confirming judges, determining their salaries and jurisdiction – and, of course, the legislature would enact much of the law that the judges would apply to specific disputes.)

In defending this very broad independence, Alexander Hamilton, in Federalist 78, incidentally provided some important qualities that the other branches would want to look for in selecting and confirming judges who will rule in constitutional cases.

He explains that judges must be independent from other branches of government because they are interpreting a “limited constitution” that limits even the legislator, so these judges have a “duty” when necessary “to declare all acts contrary to the manifest tenor of the Constitution void.”

These judges cannot “substitute their own pleasure to the constitutional intentions of the legislature.” Rather they are “to do their duty as faithful guardians of the Constitution.” This means that it is “indispensable” that the judges have an “inflexible and uniform adherence to the rights of the Constitution, and of individuals.”

So, for Hamilton, “indispensable” qualifications for a judge are a strict adherence to the Constitution and the fortitude to resist substituting their own wills for the decisions made by the legislature that are consistent with the Constitution.

Although state court judges are selected (and retained) in different ways, Hamilton’s description of the judicial role is still apt. Thus, whatever their specific selection procedures, states would be wise to promote these qualifications in making decisions about who will serve as judges.

Utah has a mixed system. It begins with a judicial nominating commission, made up of seven members appointed by the governor. The only statutory direction is that the members must not utilize “partisan political considerations.” The commissioners review applications and select potential judges, considering the views of other lawyers and judges about the candidates and more general criteria like integrity, legal knowledge and professional experience.

A small group of applicants are then forwarded to the governor who nominates a potential judge from the list. No specific criteria are specified in the law, though the current governor reportedly considers “judicial activism” in making that decision.

The Utah Senate must confirm the nominee. It appears the vast majority of nominated judges are confirmed. In the past, concerns have been raised by legislators that very little questioning of the candidates takes place, though a Senate committee has authority to do that.

Judges who are serving must be retained in periodic elections. The state has a Judicial Performance Evaluation Commission, which takes public comments about judges; observes the judge in court; and surveys attorneys who practice in that court, jurors, and staff about the judge’s performance. These evaluations are made public so that voters can take them into consideration in voting on retention.

There are thus at least four inflection points where policymakers and citizens must consider whether a potential or current judge is likely to fulfill her or his obligations, particularly to the state and federal constitutions. The current process in Utah, though, does not stress these types of qualifications, stressing more the views of attorney peers and the small subset of people with direct involvement in cases. These are important voices, of course, but they don’t seem to be the types of considerations that get to more important factors like faithfulness to the Constitution’s text and meaning. Indeed, Justice Antonin Scalia once suggested that the views of attorneys as a class might in some cases be different from other citizens and from the limitations of the Constitution. There is at least one empirical study that bears this out.

Any efforts to modify Utah’s current system for selecting and retaining judges should focus on this concern. Public officials and voters should certainly know if judges lack even the most basic qualities of honesty and diligence, but they should also have a way of knowing how judges fulfill their responsibilities to adhere to constitutional provisions and their philosophies about judging and the nature of the law that necessarily impact how they will carry out those obligations.

Agreeableness is certainly important, and status among peers may tell us something – but likely not enough. Supreme court justices, for instance, who often must assess historical questions, could benefit from additional scholarly qualifications (whether formal or informal). Of course, the data points currently considered in Utah’s processes have the advantage of being relatively easy to quantify through surveys. Judicial philosophy is necessarily more difficult to understand. There are ways to at least attempt to get at this qualitative information.

The Senate confirmation process, for instance, allows for substantive questions. Questions about judicial philosophy are not only appropriate but essential. Even candidates who have already served as judges may not have had occasion to weigh in on constitutional cases. Perhaps other occasions for lawmakers to ask questions about a judge’s approach could provide more opportunities – for instance, if the process were changed to require sitting justices to be reconfirmed by the Utah Senate at the end of their term. Of course, judges may not be able to disclose information about pending cases, but they could explain their reasoning and approaches to constitutional interpretation.

Some of this information is contained in published opinions, but it seems likely that many policymakers and citizens do not read these. Thus, sophisticated press coverage could help. Currently, public discussion of high-profile cases focuses on outcomes, but the reasoning behind them is critical as well.

Public understanding of the nature of the federal and Utah constitutions and the possible approaches to questions of interpretation of these documents also needs attention.

Some of these solutions could be promoted through legislation, but the private sector is likely to have a more important role. Opinions about how courts should approach their constitutional tasks will vary, but increased attention to (and discussion about) the role of judges is a necessary addition to the marketplace of ideas.

Utah’s Legislature is likely to consider a range of approaches to judicial selection and retention, but without creating more opportunities to understand how potential and current justices approach legal interpretation, particularly constitutional interpretation, they will fall short of what the people of the state need and deserve.