Is the Utah Supreme Court a check on the Legislature? Nominees share their views

SALT LAKE CITY — A Utah Senate panel has voted to recommend two state Supreme Court nominees, sending the governor's picks to the full Senate for a final vote later this week.

Matthew Bell and Michael Menssen, if confirmed, will become the sixth and seventh members of the newly-expanded Utah Supreme Court.

Bell, a district judge from southern Utah, and Menssen, a civil litigator, are set to fill two vacancies previously held by former Chief Justice Matthew Durrant, who retired last month after 26 years on the high court, and former Justice Diana Hagen, who resigned in May amid allegations of misconduct.

During hearings on Friday and Monday, members of the Utah Senate Judicial Confirmation Committee asked Bell and Menssen many questions about their judicial philosophy, interactions with other elected officials and other topics.

One issue that came up frequently was the relationship between lawmakers and the judiciary. The Utah Supreme Court has ruled against the Republican-controlled Legislature in several recent high-profile cases, leading to increased tension between the two branches of government. Critics have blasted GOP leaders for expanding the court.

Menssen said it's not the role of a Supreme Court justice to either support or oppose the Legislature.

"My job would be to support the constitution and enforce the constitution one way or the other," he said. "If the constitution is silent on something, then the Legislature can do it, and then, yes, then that would be the law, and we would enforce the law that the Legislature passed. And if the law violates the constitution, then we would rule that way."

"I don't view myself as a check on the Legislature or the executive branch," added Bell. "I view myself as an independent branch of government, and the constitution itself is the check on all three of us."

What do the nominees believe?

Like all recent justices nominated by Gov. Spencer Cox, both Menssen and Bell said they follow originalist and textualist philosophies, meaning they rely on the original meaning of laws or the constitution and use the text itself when interpreting the law.

Lawmakers also pressed both men on what checks on the court exist if it oversteps its constitutional authority.

Bell responded by noting that judges are appointed and confirmed by the governor and Senate, and must be retained by a majority of voters after several years. If a court strikes down a law passed by the Legislature, lawmakers can change it to make their intent more clear, he added.

"The Legislature has the ability to impeach a sitting judge, but I think it goes beyond that," Bell said. "The Legislature can overrule if you believe the courts incorrectly interpreted a statute, and this body has done so sometimes in the very next legislative session."

Lawmakers can also change court rules, including on who has standing to bring cases.

"I think there are a number of ways that the Legislature can direct that process and provide certain checks while still allowing the judiciary to be necessarily independent," Bell said.

Menssen stressed the importance of having an independent judiciary, but said judges shouldn't be relied on to make policy decisions.

"I think courts and judges are supposed to be experts at deciding the law," he said. "They are not supposed to be experts on weighing other societal questions and I don't think judges are any better at deciding what those should be than any other random person in society."

That's the job of the Legislature, Menssen added, "and I don't think judges are well suited for it."

Sen. Stephanie Pitcher, D-Salt Lake City, questioned both nominees about their past conversations with the governor, lieutenant governor and lawmakers — and whether they were asked about how they would rule on any specific matters. Menssen and Bell both said they were not.

Both nominees were advanced with unanimous approval from the committee and will now face a final vote in the Utah Senate on Wednesday afternoon.

The unanimous committee vote is a change from the June nomination hearing for Stephen Dent and Jay Jorgensen, who each faced at least one Democratic detractor. Dent and Jorgensen were ultimately both confirmed to the Utah Supreme Court.

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