Utah Republicans Get Their Scalps

It hasn’t attracted as much attention as the donnybrook in Virginia, but the epic battle between Utah’s Republican-controlled legislature and its supreme court rolls on. I covered the blow-by-blow here. Republicans have held trifecta control of Utah’s governorship and legislature since 1984, so they are very much entitled to have a judiciary that reflects that. And there are some reasonable process arguments for expanding the state supreme court from five justices to seven, in line with the size of most state supreme courts. Pushing a swift expansion of the court, stripping it of some of its jurisdiction, and trying to pressure some of its justices off the bench, however, is pretty clearly driven by the political furor at the court’s rulings on various issues, such as the court’s novel idea that legislation (not of the constitutional variety) enacted by ballot initiative cannot be changed by the state legislature.

What Utah should be doing is reforming how its judges are chosen, to put that process — as it is at the federal level — under more direct political control, while retaining the independence of the judges once appointed. That would mean doing away with the misguided Missouri plan by which judge selection runs through a bar committee.

Anyway, the latest turn came last Friday, when Justice Diana Hagen — the target of criticism for leaked texts suggesting a romantic relationship with a lawyer for the Democrats in redistricting litigation, and also a Republican target in retention elections this fall — resigned from the bench. For all of my skepticism of this semi-scandal (given that the texts were described only secondhand and that Hagen recused herself from redistricting cases after reconnecting with the lawyer, at least by her sworn account), the resignation suggests that she had, at a minimum, enough to be embarrassed about that she couldn’t withstand having her personal life dissected in the news. The leaders of the state legislature agreed to drop all further investigations into Hagen in the wake of the news. But they and governor Spencer Cox are still looking into “reforms” to the Judicial Conduct Commission, whose investigation into Hagen they branded as inadequate. It’s a sign of the clubby world of Utah politics that the commission’s chair had to recuse herself from the investigation because of her closeness to Hagen.

With the two-seat expansion, Hagen’s resignation, and another appointment in January, it’s expected that there will be four new justices out of seven by the time the court reconvenes in the fall.

The whole episode has been a delicate one for Cox, who sometimes sounds like a man with national ambitions. He has tried to walk a fine line between beefing up his credibility as a proponent of originalist judges (very much unlike the incumbents on the court, some of whom Cox appointed) and conservative causes, while seeking to avoid damage to his own brand as an advocate of the sort of civil politics long associated with Utah. It’s been an illustration of how hard it is to maintain that in this moment.