SALT LAKE CITY — Judge John Nielsen's nomination to the Utah Supreme Court comes at a particularly tense time in relations between the legislative and judicial branches of government.
That was evident throughout Monday's hearing, where Judge Nielsen was grilled on legislative power and the limits of the judiciary.
"If the voice of the people, the legislature or whatever, feels the courts have gone amiss in its interpretation, passes a statute to clarify, post-decision," Sen. Dan McCay, R-Riverton, said. "In your opinion, how should that clarification be viewed against the decision?"
Judge Nielsen thoughtfully replied about the history of common law and legal interpretation. But throughout Monday's confirmation hearing, questions about judicial philosophy seemed to be referring to disagreements Republican legislative leaders have had with rulings that judges and the Utah Supreme Court have made.
Hours from election day in Utah, does anyone care?
Judge Nielsen was confirmed to the 3rd District Court 11 months ago. He has been nominated by Governor Spencer Cox to replace retiring Associate Chief Justice John Pearce on the state's top court. He has also been an attorney with involvement in some controversial cases. He previously worked at a law firm with former Utah Supreme Court Justice Thomas Lee (the brother of U.S. Sen. Mike Lee) that represented some interests in cases on transgender student athletes, abortion rights and constitutional amendments.
"I believe you’re referring to a case in which my firm filed a brief on behalf of 10 individuals in the Utah Republican Party, it was a case involving Amendment D," Judge Nielsen said in response to one question about the ongoing redistricting litigation. "It wasn’t in the redistricting case. It was a related action that’s now done."
Judge Nielsen described himself as an "originalist" in judicial philosophy and repeatedly told the Senate Judicial Confirmation Committee his belief that he can be impartial. He offered to recuse himself from hearing certain cases, if he felt it were necessary.
But pressed by Republican and Democratic lawmakers on specific viewpoints on a lot of those issues, Judge Nielsen said he was limited in what he could say, citing rules that govern judges.
"If a state legislature, hypothetically, passed a law that said abortion was illegal after a certain time limit... what would be your analysis to and walk through where you thought the constitutional argument might be and how you would apply that constitutional standard to potentially this new law that’s been proposed?" asked Sen. McCay, who passed a law banning abortion in most cases in Utah that has been tied up in litigation.
"I can’t commit to making any decision nor even say what my conclusions would be," Judge Nielsen replied.
Asked by committee chair Todd Weiler, R-Woods Cross, about the role of the courts to interpret general policy statements like promoting economic liberty or environmental protections, Judge Nielsen replied: "I'm just going to give the same answer, I think it’s something I can’t answer."
Ultimately, Judge Nielsen advanced out of committee on a 5-2 vote with Democrats voting against him.
"My biggest concern is that this judge has found himself on one side of some very, very political questions that have been litigated," said Sen. Stephanie Pitcher, D-Salt Lake City.
Senate Minority Whip Karen Kwan, D-Taylorsville, told FOX 13 News she voted against Judge Nielsen citing a lack of experience with diverse communities like those in her district.
"He had some quite traditional ideas so I think perhaps with a little more experience on the bench? He’d have more experience working with diverse communities," she said.
But Sen. Weiler said he didn't find any issues with Judge Nielsen.
"He’s demonstrated he’s scholarly, he's of good character," he told FOX 13 News. "I think he’s extremely intelligent. I think part of our job is to take who the governor picks and find a reason to vote no. I didn’t find one."
The full Utah State Senate will vote on confirming Judge Nielsen to the Utah Supreme Court later this month.
