Evaluating judgment calls can be complicating

Nov 15 2013 - 7:01pm


The word "judgment" is one of those words that just feels heavy and ominous.

"You have a judgment against you," isn't quite the same as "you have a fluffy cat against you." Movies with "Judgment" in the title usually involve a significant number of explosions.

Then of course there is always the greatest day of reckoning, striking fear into human hearts at least since the fiery preacher, Jonathan Edwards, described Judgment Day in his classic sermon, "Sinners in the Hands of an Angry God."

Here is a taste of Edward's brimstone: "Justice bends the arrow at your heart, and strains the bow, and it is nothing but the mere pleasure of God, and that of an angry God, without any promise or obligation at all, that keeps the arrow one moment from being made drunk with your blood."

Fortunately, justice in 21st Century United States isn't quite as bloodthirsty as Edwards' religious rhetoric, but if you are standing in front of a judge awaiting judgement you may be asking yourself, who is that up there in that black robe?

Reading the news over the last month, the more critical question may be what kind of person can even become a judge? Or more accurately, what kind of judge can even get approved by a group of Senators?

On a federal level, a long and growing list of judicial appointees have not been approved by the Senate. Last week, Nina Pillard could not be confirmed as a judge to the D.C. Circuit Court of Appeals when the Senate failed to get to the 60 votes necessary to stop a filibuster. By all accounts, Pillard was highly qualified and a non-controversial pick, yet politics intervened.

Locally we had a similar experience last month. Commissioner Catherine Conklin, the domestic relations commissioner in the Second District Court had been nominated to be a district court judge by Gov. Gary Herbert. Utah mirrors the federal constitution and requires the executive branch to appoint judges and then the judges then must be confirmed by the Senate.

In Commissioner Conklin's case, her appointment to the bench was denied when the State Senate refused to ratify her appointment. If you read the Standard articles during that time, you got the impression that the legislators denied her the judgeship because of something that happened in a domestic case she handled. The facts of the case were tragic. A little girl died when her mother crashed her car after using illegal drugs.

I don't know anything about the case, but the anger at Commissioner Conklin for her ruling actually illustrates why it is so important that the judiciary be independent of politics and insulated from public pressure. A judge has the role of being impartial, which should rule out politics. A judge must decide cases based on the facts available to the judge, so in that regard the judge's decisions are only as good as the facts presented. A judge gets to do all this without the public's 20-20 hindsight. It is a hard job and that is why I toss the "Notice of Judicial Vacancy" cards into the garbage can when I get them in the mail. I wouldn't want the job.

I don't pretend to know why the Senators wouldn't vote to confirm Commissioner Conklin's appointment. It was done in a private caucus and who knows what the legislators were thinking or basing their decision on. (Real judges have to provide a list of facts and legal conclusions explaining how and why they decide a certain way.) I can say that in the times I've met Commissioner Conklin and the high regard she is held, she would have been an excellent judge.

During my legal career I've had the privilege of practicing in front of many excellent judges and the quality of Utah's judiciary is exceptional. So if you find yourself being judged, just be glad it isn't by a group of Senators.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.


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