SALT LAKE CITY — Governor Spencer Cox announced his nominees for an expanded Utah Supreme Court, choosing Jay Jorgensen and Stephen Dent to fill two newly-created seats.
Jorgensen, a senior counsel for The Church of Jesus Christ of Latter-day Saints, and Dent, an assistant United States Attorney in St. George, were picked from names submitted to the governor by a judicial nominating commission.
"I'm looking for people who care deeply about the constitution of the state and the constitution of the United States," the governor told reporters at a news conference Tuesday. "It’s been no secret, I mention this multiple times, but judicial philosophy really matters to me. I believe in textualism, I believe in originalism and I believe in judicial restraint."
The governor appears to be getting just that. Jorgensen and Dent, in separate remarks to FOX 13 News, said that was their judicial philosophy.
"Then-Judge Alito, now Justice Alito and Chief Justice Rehnquist, they taught me about judicial philosophy which is textualism and originalism," Jorgensen said. "What that means is judges don’t write the law. You just look at the words they wrote and that’s what it is."
Said Dent: "I am an originalist and a textualist. I believe that that is a faithful way of interpreting text when you’re considering the separation of powers and a judge’s role."
Pressed on Jorgensen's role as an attorney for The Church of Jesus Christ of Latter-day Saints — a powerful institution in the state of Utah — Gov. Cox said it did not impact his choice.
"I don’t care who they worked for. I care for their legal mind and their legal scholarship," he told reporters.
The Utah Supreme Court will hear some significant cases soon. Appeals on independent redistricting and the power of citizen initiatives, the legislature's new law creating constitutional courts (and lower court legal challenges over the Great Salt Lake, abortion rights and climate change) and the death penalty are on the docket.
Dent and Jorgensen's nominations also come at a time of heightened tensions between the judicial and legislative branches of government. Some in the Utah State Legislature have been angered by rulings the state's top court has made on citizen initiatives and independent redistricting, abortion rights and other hot topics. The legislature passed a bill this year expanding the Utah Supreme Court, arguing in part that the justices were sometimes too slow in getting their rulings out.
"Some of that tension is to be expected because we’re branches of government kind of bumping and grinding up against each other," said Sen. Todd Weiler, R-Woods Cross, who chairs the Senate Judicial Confirmation Committee. "And I do think that even though there is some tension, those relationships are cordial."
Asked by FOX 13 News if he was walking into the lion's den, Jorgensen quipped: "It turned out well in the lion’s den last time. My guess is it will turn out well this time. The state is full of wonderful people. The Utah way is to respect each other and to show dignity to other people, dignity to those you disagree with."
Dent told FOX 13 News that when it came to the legislative tension, "I believe it’s important for judges to understand their role, to exercise judicial humility and then when there’s disagreement to not be disagreeable and bring light and not heat. That’s what I intend to do."
Republican party leaders have been encouraging people to vote against retaining Associate Chief Justice Jill Pohlman over the redistricting and citizen initiative rulings. Justice Diana Hagen, who faced the same anti-retention campaign, resigned as Republicans on Utah's Capitol Hill were pushing for an investigation into her relationship with an attorney on the redistricting case (she had recused herself from that litigation and a separate investigation found the claims against her had no merit).
Chief Justice Matthew Durrant has announced he will retire in August. He has been dealing with health issues.
All of this gives Gov. Cox a chance to overhaul the state's top court. With Justice Hagen and Chief Justice Durrant's positions and the expanded court, he will have four seats to fill this year.
"Certainly I didn’t anticipate that I would be appointing four justices this year. That was a surprise," the governor said.
Gov. Cox previously appointed Justice Pohlman and Justice John Nielsen to the Court. But the governor bristled at questions about a lack of women's names being sent to him. The governor said only four women's names were submitted in the last round given to him and two were not qualified.
"I don’t go into this looking at your chromosomes when I'm making an appointment," he said. "I'm trying to find the best legal minds who represent the state of Utah. And I think that’s all that should matter."
But the non-partisan group Co-Equal Utah, which was formed to defend against attacks on the judiciary, raised concerns about both men's legal qualifications, saying they are concerned about the nominees not because of their politics but because neither has served as a judge at any level.
"The Utah Supreme Court is not an entry-level position. It is the court of last resort for every Utahn. The governor has bypassed sitting judges with years of trial and appellate experience to place two individuals with no judicial record directly on the state's highest court. Utahns deserve to know why," the group said. "The context here cannot be ignored. The court has been expanded by legislation, which critics called court-packing. The GOP State Chair is running an organized campaign to unseat Justice Pohlman in November. One justice resigned under political pressure after a Judicial Conduct Commission called the underlying complaint 'misleading.' And now, Governor Cox will have appointed five of seven justices within a single year – a court substantially remade while redistricting, ballot initiative, and other key lawsuits against the legislature cases remain live."
"We also note that women, objectively more qualified than the two men nominated, applied for these seats. The last 19 finalists across three vacancies have been men. The governor's explanation for that pattern deserves scrutiny."
The Utah State Senate will take public comment on Dent and Jorgensen's nominations. Sen. Weiler said he would schedule hearings for the nominees in the next couple of weeks. The full Senate is expected to vote on confirmation on June 17.
