Letting governor pick chief justice would hinder court independence

I write to express my strong opposition to SB109, which would transfer to the governor the power to select the chief justice of the Utah Supreme Court from among the sitting justices for a fixed term. My perspective on this issue is unique. I had the privilege of serving as a justice of the Utah Supreme Court for 16 years, and as chief justice slightly more than four years. I also served as an elected member of the Utah Judicial Council for six years and chaired that body for the four years I was chief justice.

I have heard advanced in support of the bill the rather odd notion that the five justices cannot get along if they have to choose the chief from among themselves. During my time on the court, I never saw any reason to think that having the governor appoint the chief justice would solve any such "problem." The job of the justices is to disagree at times. They may even be disagreeable. But very little of this disputation is related to the election of their chief every four years. The House and Senate select their leadership and yet manage to work together. The Supreme Court is no different.

There are a number of reasons SB109 is unwise.

First, no reason worthy of the name has been given for fundamentally altering the independence of the judicial branch. The drafters of both the 1896 Utah Constitution and of the landmark 1984 revision of its Judicial Article left the Legislature and the governor out of the internal politics of the Supreme Court. The Legislature should recognize the wisdom of those decisions.

Second, SB109 reflects a deep lack of understanding of the duties of the chief justice. The chief justice does not control how the court decides cases, and the chief justice does not run the judiciary. The power of the office rests in large part on credibility. Having the governor select the chief would undermine that credibility, actually disempowering the governor's favorite by undermining his or her credibility with the other judges.

For example, within the Supreme Court, the chief only presides over arguments and court conferences. Unlike the chief justice of the United States, the chief justice of the Utah Supreme Court does not decide who writes what opinion. That is determined by a random lottery system. The chief's job is largely ceremonial within the court.