On Wednesday, the Senate convened to vote on the appointment of Judge John Nielsen to serve as the next justice on the Utah Supreme Court.
I had some concerns about this appointment.
I’ve sat on the Senate Judicial Confirmation Committee for two years, and vetting the governor’s judicial appointments is one of the more important roles we have. As a Senator, my duty is to confirm a candidate who I believe has excellent legal abilities, well-rounded experience, understands and is committed to the ethical rules of recusal, believes in the independence of the judiciary, and is capable of weighing the issues fairly and without bias.
Unfortunately, I did not see that in the candidate in front of us on Wednesday.
The governor appointed Mr. Nielsen at a time when tensions between the legislature and the judiciary are high. Several of my legislative colleagues have expressed clear displeasure with the judiciary for Judge Gibsons’s recent ruling on redistricting, publicly airing their grievances, leveling criticism in the media, and even going as far as to suggest impeachment against this judge because she issued a ruling they do not agree with.
At a time when the independence of the judiciary feels threatened, and the separation of powers has never been more important, it’s critical the Senate prioritizes appointing a jurist to the Utah Supreme Court who will be fair, unbiased, and neutral.
I was not able to see that in Judge John Nielsen. My research and questioning found that Mr. Nielsen has spent the better part of his career in private practice arguing conservative outcomes on some of the most political cases we have seen litigated in Utah (and nationally) over the past several years. Specifically:
- Mr. Nielsen was hired by the state to defend HB11, a recent law which prohibits transgender high school girls from competing on a team designated for female students. HB11 defined ‘sex’ as being determined by the individual’s genetics and anatomy at birth.
- Mr. Nielsen filed an amicus brief (also known as a “friend of the court” brief) in a case with the U.S. .Supreme Court involving transgender students and school bathrooms. Mr. Nielsen advocated for the position that a school that prohibits a trans student from using the bathroom that best fits their gender identity does not violate Title IX and the Equal Protection Clause.
- Mr. Nielsen filed an amicus brief with the U.S. Supreme Court arguing that Republican South Carolina Sen. Lindsey Graham should not have to testify before a Georgia grand jury over his role in election interference in the 2020 general election.
- Mr. Nielsen filed an amicus brief on behalf of Pro-Life Utah after a legal challenge was brought against the state for a recent law that would ban most abortions in Utah. Mr. Nielsen argued a constitutional interpretation that, he asserted, meant the law banning most abortions should be upheld.
- Mr. Nielsen filed an amicus brief on behalf of the Utah Republican Party arguing that the Utah Supreme Court was wrong when it voided an attempt by the Republican legislature to amend the Utah Constitution and ensure legislators the ability to repeal any citizen-passed ballot initiative. Amendment D was an attempt by the legislature to reverse the citizen’s initiative on independent redistricting, which was passed via Prop 4.
Mr. Nielsen has every right to take on the clients and causes he chooses, and many attorneys spend their careers advocating for specific legal outcomes. But given the current environment and the generational impact of a Utah Supreme Court appointment, I believe his background raises real questions about balance, neutrality, and the ability to fairly evaluate both sides of an issue—especially when two of the cases he’s taken a position on could return before the Supreme Court for further litigation.
Ultimately, I feel that Mr. Nielsen’s appointment does not inspire much confidence with litigants, or the public, that he will be fair, neutral, and unbiased. Instead, the appointment feels like a calculated political decision designed to sway the ideology of the Utah Supreme Court.
For those reasons, I voted no.
Mr. Nielsen was confirmed on partisan lines and he will take the bench on December 2. I am disappointed with this outcome, but commit to staying vigilant, bringing transparency to these issues, and fighting against efforts that undermine public trust. Thank you for standing with me in the fight.
In solidarity,
Stephanie