• Many current controversies implicate the principle of federalism, but that principle is not always well understood.
• Rather than viewing states as rights holders or administrative units of the national government, the Constitution recognizes the people of the United States as the ultimate sovereign and divides responsibilities between the state and national governments.
• The specific division provides the states the authority and duty to carry out most of the key functions of government and advances the overarching purposes of the Constitution.

Gov. Spencer Cox has nominated two attorneys to join the Utah Supreme Court. As the Utah Senate considers whether to confirm these nominees, it should carefully evaluate their fitness based on one overriding consideration: their dedication to the integrity of the Utah Constitution.

In its last session, the Utah Legislature increased the number of justices serving on the court by two. The size of the court had not changed since 1917. Recent and predicted growth in the state and, correspondingly, the work of the state’s courts are important factors for the change. 

The new nominees seem capable and dedicated, and the governor and the Appellate Court Nominating Commission (that proposed them to the governor) appear to be wisely approaching these nominations. 

Adding a new judge to the court is not the job of only one branch of government, though. In fact, there is significant danger if any of the officials constitutionally assigned to participate in the process believe their role is to just go along with the recommendations of others.  

The Utah Constitution assigns the governor the responsibility of selecting a nominee from a list provided by the Judicial Nominating Commission. Importantly, it also assigns the Senate the responsibility to “consider and render a decision on each judicial appointment within 60 days of the date of appointment.” Without Senate approval, the office is vacant, and the nominating process begins again. 

In the case of the most recent nominees, the Commission and the governor have done their job, and the Senate must now act. 

Our constitutional system establishes the priorities that must guide the Senate’s consideration. 

Professor Lawrence Solum explains that “constitutional supremacy” is the approach to the constitution most consistent with the rule of law and representative government. It “assigns to every constitutional actor—not only courts but Congress and the executive as well—the duty to interpret and apply the constitutional text in accordance with its original public meaning.” 

When the courts, in particular, do not follow this mandate, they “govern by decree” rather than law because it grounds “constitutional authority in the individual judgments of unelected judges, producing a form of judicial tyranny that is inconsistent with republican freedom—freedom from the arbitrary will of another.” Following constitutional text, by contrast, binds the judges (and other branches) to “an external standard.” 

This is precisely the concern raised by some recent decisions of Utah courts, which appear to inject policy judgments into court rulings on abortion, school choice, and legislative authority. 

Thus, senators should be clear that only nominees who understand and are committed to constitutional supremacy and the constitutional role of judges will be confirmed. 

The nature of the judicial role also makes it clear that partisan considerations are entirely inappropriate in determining a nominee’s qualifications. Judges do not have a policymaking role. Understanding the responsibility of the judiciary also puts in perspective other claims as to the proper qualifications for a judge. While such matters as temperament can be very important, they are secondary to the nominee’s commitment to faithfully understanding and applying existing legal provisions. This is true also of the value of prior judicial experience. Perhaps it can be helpful, but it is still secondary. So, too, with considerations of diversity. 

Every branch of government has critical constitutional responsibilities. The nomination of new Utah Supreme Court justices is a moment when all are on display. This week (and in the coming months as additional nominations are considered) will allow the legislature to perform its vital role of ensuring that the justices are committed to faithfully applying the law. Their work, along with the governor’s and that of the justices (current and future), in large measure will determine the integrity of our state constitutional system.