SALT LAKE CITY — A proposed change to the state Constitution would completely alter the way that Utah selects judges.
The resolution has also caused quite a stir on social media, pitting the state senator who proposed the legislation against Lt. Gov. Spencer Cox, a candidate for governor.
Under Senate Joint Resolution 8, proposed by Sen. Daniel McCay, R-Riverton, judges would run in non-partisan elections every four years. They would also be able to raise funds for election campaigns. Currently, judges are selected by the Governor’s Office from a pool of candidates and are confirmed by the state Senate.
Once confirmed, judges have retention elections every six years unless they are on the Utah Supreme Court; those justices have retention elections every 10 years.
Because the legislation would involve altering the state Constitution, the bill would have to pass both the House and Senate with a two-thirds majority and would then have to be approved by voters.
Days after the legislation was made public, Cox posted his opinion of the idea on Twitter, saying, “It would be impossible for me to overstate what a terrible idea this is.”
McCay later responded to the tweet, saying, “So ... the voice of the people is bad for Utah? I’m confused.” In another tweet, he described the retention elections currently in place as a “joke,” and he went on to say that “making a claim that (a retention election) respects the ‘voice of the people’ is also a joke.”
McCay did not respond to multiple requests for an interview.
Twitter aside, the proposed legislation has drawn push-back from state groups. In a statement released Wednesday, the Utah State Bar gave its support for the current system of selecting judges, saying it is the best way to create an independent judiciary.
“This system allows the governor to choose from a pool of highly qualified lawyers who go through an intensive review process, followed by Senate confirmation,” the statement read. “The current system of judicial selection has served Utah well in creating a highly respected judicial system for Utah’s residents.”
The State Bar also pointed out that other states have “experienced a multitude of unintended consequences” when operating under the system McCay is proposing to employ.
Some of those unintended consequences were outlined in a 2017 publication from the American Bar Association, which cited studies suggesting judges nearing re-election were more likely to impose longer sentences.
Included in the ABA report was a quote from former California Supreme Court Justice Otto Kaus, who said that ruling on controversial cases as a judge facing an election is like “finding a crocodile in your bathtub when you go in to shave in the morning. You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”
As of Friday evening, McCay’s SJR 8 was introduced to the Senate Rules Committee, but has yet to be put to a vote.