In our opinion: Keep courts independent

Published: Friday, Feb. 5 2010 12:12 a.m. MST

Walter Bugden, attorney for convicted polygamist leader Warren Jeffs, argued his case before the Utah Supreme Court Tuesday, November 3, 2009 in Salt Lake City.

Trent Nelson, TrentNelson/Pool

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Imagine a bill requiring the chief justice of the state Supreme Court to choose the president of the Senate. The notion would be so absurd that the bill likely wouldn't even get a committee hearing. And yet Justice Jill Parrish told us Thursday it is no less absurd than SB109, which would require the governor to select the chief justice. She's right.

It's not unusual for friction to exist among the three branches of government. Each has a duty to check the power of the others, in limited ways laid out by the state constitution. But it is absolutely essential that the judicial branch operates as free from political influence as possible. Justice demands it. Utah gives the people ultimate power over judges through regular retention elections, but no judge, especially a justice of the Supreme Court, should approach a decision with an eye toward how it would play politically.

The very least Utahns should expect from SB109 is that its sponsor, Senate Majority Leader Scott Jenkins, R-Plain City, can explain the need for such a change. The chief justice is elected by the five members of the Supreme Court. This, the justices say, gives the chief a sense of legitimacy.

Has this system not worked well? Is there a strong counterargument for changing it? Jenkins hasn't advanced one, other than to say he feels the "temperament and congeniality" of the court would improve if the chief justice were chosen by the governor. But why does he feel there is a problem with the court's temperament and congeniality?

And why should the temperament and congeniality of one branch of government be the concern of another?

Only five other states allow the governor to choose the chief justice in a manner similar to that proposed by this bill. A few other states also give the governor such power, but they differ from Utah in fundamental ways, such as that their justices serve either extremely long terms or for life. That is true also in the federal government, where the president appoints the chief justice but where a lifetime term ensures that the justices are independent of political considerations.

But the way other states work shouldn't matter as much as the notion that Utah's system needs to change. No one has yet to advance an argument for that. Even the governor's office has no position on the matter.

Unlike the legislative and executive branches, the judicial branch has no constituents to please. As the current chief justice, Christine M. Durham, told us, "Judges have loyalty to one thing, and one thing only, and that is the law." The more carefully that independence can be preserved, the better. SB109 should be rejected.

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