By Monday, Roger Livingston will be Judge Roger Livingston and will start hearing cases on the 5th Circuit bench.

As expected, Livingston, a Republican, was confirmed by the Republican-dominated Utah Senate Wednesday in a party-line vote, 21-7. Also as expected, before the confirmation vote several Democratic senators criticized his appointment, saying a man with a colored past like Livingston's shouldn't be a Utah judge.Livingston will be sworn in Thursday and has a case calendar waiting for him Monday, said court administrator William Vickrey.

All 20 Republican senators pres-ent voted for confirmation. The only Democratic vote came from Sen. Paul Fordham, D-Salt Lake. Fordham also voted for Livingston in the Senate Confirmation Committee hearing, of which Fordham was a member.

The Democrats who voted against Livingston say an incident in 1980, when Livingston considered having his luxury car stolen and destroyed to get out of onerous lease payments, showed extremely bad judgment.

Such lack of judgment precludes Livingston from serving on the bench, said Senate Minority Leader Rex Black, D-Salt Lake.

Livingston, for the past eight years an administrator and prosecutor in the Salt Lake County attorney's office, admits to the discussions about his car. But he adds he never seriously considered having the car stolen, a crime that would have been a felony because of the car's cost, and eventually turned the car back into the leasing company, taking a financial loss by doing so.

Livingston was praised by supporters as a man whose recent legal service is beyond reproach.

Black countered that Livingston "conspired to commit a felony." "These discussions (he had with a man about taking his car) showed a complete lack of judgment. It seriously limits his ability to sit on the bench in judgment of others," Black added.

In an open Democratic caucus, Black said evidence presented during a closed session of the confirmation committee showed that Livingston's 1980 incident was brought before the now-defunct Salt Lake County Grand Jury several years ago. "I'm told that the grand jury would have issued two indictments (over the car incident), but the statute of limitations had run out," said Black. The Deseret News has reported previously that the matter was brought before the grand jury. While not specifically commenting on the Livingston matter, special grand jury prosecutor Larry Keller told the Deseret News that there is a four-year statute of limitations on conspiracy to commit a felony. No indictment against Livingston was handed up by jurors.

The grand jury was the second time Livingston's case was reviewed by legal officials. The Salt Lake County attorney's office investigated the matter in 1980 and also didn't bring any charges, believing no laws had been broken. Livingston was not working for the office at the time of the car incident but was working for it at the time of the office's investigation.

Democratic senators asked Gov. Norm Bangerter in February not to nominate Livingston. They asked Bangerter to nominate one of the two other attorneys recommended by the Judicial Nominating Commission. Bangerter rejected the Democrats' appeal and nominated Livingston several weeks ago.

After a seven-hour hearing two weeks ago, the Senate Confirmation Committee voted 4-2 to recommend Livingston's appointment to the whole Senate.