Cox appoints 3rd District Judge John Nielsen to fill vacancy on state Supreme Court

SALT LAKE CITY — Utah Gov. Spencer Cox nominated 3rd District Judge John Nielsen to serve on the state Supreme Court after Associate Justice John Pearce resigns his seat, effective Dec. 1.

Nielsen's appointment to the high court comes at a moment of tension between the judiciary and the Republican-controlled Legislature, as lawmakers have bristled at several recent court rulings and some Republicans have lambasted jurists as activists.

Nielsen is subject to confirmation by the Senate, where recent disagreements between the two branches of government likely set him up for an extra round of scrutiny from GOP lawmakers. Cox said he doesn't anticipate a "contentious" process, but he is "anticipating a thorough confirmation process."

"While the judiciary is independent, and that absolutely matters, there are times when the judiciary intersects with the partisan politics of our state, and this is one of those times," the governor said during a press conference on Tuesday.

Nielsen's recent appointment to the bench last September should also help his chances, as he went through the same advice and consent process just a year ago.

The governor described a lengthy and thorough interview process ahead of Nielsen's selection, and described the nominee as a textualist, originalist and "one of the smartest people I've ever interviewed."

Originalism is a judicial philosophy that attempts to follow the intent and understanding of the Constitution at the time it was written, while textualism aims to interpret laws based on the ordinary meaning of their text, not the legislative intent or history.

Nielsen agreed, saying he would use the same words to describe his philosophy.

"I don't know if anyone deserves a position like this, but I will give my best and my all in this position," Nielsen said. "I have a deep respect for the court as an institution."

Chief Justice Matthew Durrant added that Nielsen is a "powerful testament to the strength of this process for judicial selection." Nielsen has argued cases before the high court during his time as an attorney, and Durrant said he has "never seen a better oral and written advocate."

"I am beyond thrilled that he will be joining our court," Durrant added. "I think he will be a great servant to the people of Utah."

Nielsen earned his bachelor's degree from Brigham Young University and later graduated from the university's J. Reuben Clark Law School. He went on to work as a partner at Schaerr Jaffe after working as an assistant solicitor general in the Utah Attorney General's Office for 11 years, and as a deputy county attorney in Utah County.

His private practice experience included working as defense counsel in a lawsuit against Utah's 2022 law banning transgender girls from participating in high school sports. Nielsen withdrew from that case last November, shortly after being confirmed to the bench in Utah's 3rd District Court. The lawsuit was dropped last week by the plaintiffs.

Cox told KSL.com he didn't ask Nielsen or the other candidates about specific ongoing cases, in order to "maintain that independence" of the judicial branch, but he did ask hypothetical questions and examine Nielsen's record in cases he has ruled on.

"I feel like I have a really good feel for Judge Nielsen and how he might rule, but I can be surprised, too," Cox said.

The governor went on to say that Utah's appeals courts and Supreme Court have moved too slowly in recent years. While he said the judiciary likely needs more resources, he also believes Nielsen's experience as a district judge would translate to more efficiency on the high court.

"Our district judges have to do so much in so many different areas with so little time, so you have to make very quick decisions," Cox said. "But you have to make appropriate decisions as you have a serious caseload, and he's proven he can do that."

Lawmakers have also previously complained about the time it has taken to resolve some cases, and proposed a series of bills earlier this year to reform the judiciary in ways they said would improve efficiency. Those bills — most of which were later dropped — were widely seen as retaliatory, however, in response to the Supreme Court ruling that lawmakers overreached when changing a 2018 ballot initiative on redistricting.

Cox said he is considering whether the Supreme Court should be expanded — Utah is one of only 15 states with five Supreme Court justices — or what other steps could be taken to speed up the process of ruling on appeals at all levels.

"When it takes years for cases to be resolved ... then only the wealthiest can take advantage of our system," he said.

Durrant said while there is "inherent" tension between the branches of government in Utah's system, the Supreme Court tries to resolve cases as quickly as possible — and he believes it often succeeds, aside from a few outlier cases. He said attorney staffing levels can slow down cases, as parties on both sides often seek extensions to fully flesh out their arguments in court briefs.

"It's kind of a multi-factor analysis as to why cases take the length of time they do," he told KSL.com. "But once they reach our desk, we are very concerned about moving them as quickly as we can."

Some of the ongoing cases have involved complex issues such as transgender rights, gerrymandering and abortion, and Durrant admitted those can take more time as justices grapple with the issues.

"We take caution on all our cases, but on some we invest more time than the typical case," he said. "These are all close calls, and we just want to get it right. So, we are very concerned about time and getting things out as quickly as we can, but we are more concerned about getting the right answer based on the law and the Constitution."

The Senate Judicial Confirmation Committee will now consider Nielsen's appointment before advancing him to the Senate for an up-or-down vote. They will likely meet ahead of or during the Legislature's next round of interim meetings, set for the week of Nov. 17.

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