Copyright Salt Lake Tribune
Gov. Spencer Cox’s nomination of Judge John Nielsen to fill a vacancy on the Utah Supreme Court is headed to a confirmation vote Nov. 19 after Nielsen won the backing of Republicans on a Senate vetting committee. The two Democrats on the committee held reservations, however, including Nielsen’s record of being involved on behalf of conservative causes in highly politicized cases while in private practice. “My biggest concern is that the 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. “While I appreciate the former comments that a good attorney can take both sides of an issue, that doesn’t appear to have been the case.” Nonetheless, the Senate Judicial Confirmation Committee voted 5-2 to recommend Nielsen’s confirmation, with the two Democrats on the committee — Pitcher and Sen. Karen Kwan, D-Salt Lake City, voted no. Kwan expressed her concern that Nielsen lacked the necessary experience, having served as a district judge for less than a year. Nielsen’s nomination comes at a time of considerable tension between Republican legislators and the Supreme Court, which has stymied the GOP efforts to ban abortion, repeal an anti-gerrymandering ballot initiative and an attempt to amend the Utah Constitution to overturn the court’s initiative ruling. Republican legislators have already stripped the Supreme Court justices of the power to choose their own chief justice, giving that authority to Cox. And in announcing Nielsen’s nomination, Cox said it is “worth exploring” whether it makes sense to add justices to the current five-member court. Sen. Dan McCay, R-Riverton, an attorney who sponsored legislation to ban nearly all abortions in the state, only to have it blocked by the court, pressed Nielsen on the issue, asking the nominee, “What your legal analysis might be if the state Legislature passed a law that said abortion was illegal after a certain time limit?” Nielsen said it would be improper for him to comment on issues that he might be called to rule on should he be confirmed — an answer he appears to have also given in closed-door meetings with senators. When asked Monday by Pitcher, an attorney, if he had been asked about the abortion issue in private meetings with members of the Senate, Nielsen said he could not recall if he had been asked, but would have given the same answer. Sen. Brady Brammer, R-South Jordan, stepped in and said he had, in fact, asked Nielsen about that issue. “At one point I did ask you a related question that I’ve asked almost every judge who has come up here,” Brammer, who is also an attorney, said. “I asked, ‘Are you aware of any part of Utah’s Constitution that creates a right to abortion?’ And I’ll just represent that your answer was, ‘That’s probably too adjacent to some of the cases that could be pending before the Supreme Court and I cannot answer that.’” Nielsen said he did not consider Brammer’s question to pertain to how he might rule on a pending case, but “it was close enough to be uncomfortable.” Nielsen has served on the 3rd District Court for nearly a year. He started his career as a prosecutor in Utah County, spent years handling appeals at the Utah Attorney General’s office, before becoming partners with former Utah Supreme Court Justice Thomas Lee, the brother of U.S. Sen. Mike Lee. Lee and Nielsen were hired by the state to defend a law banning transgender high school girls from competing in girls’ high school sports. They filed an amicus — or “friend-of-the-court” — brief on behalf of Pro-Life Utah when McCay’s law seeking to ban most abortions was challenged. Nielsen and Lee put forward an “originalist” argument drawing on news articles that mention abortion between 1850 and 1940 to contend that the authors of Utah’s Constitution did not consider abortion to be a right. Rather, they considered it “meriting the utmost condemnation available in our law and society: criminal charge and punishment.” Nielsen has repeatedly said during the course of his nomination process that he considers himself an originalist when it comes to interpreting the Constitution. Lee and Nielsen also 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 grand jury in Georgia over his involvement in efforts by the Trump campaign to influence the outcome of the 2020 election in that state. After Lee and Nielsen disbanded, Nielsen joined another politically conservative firm where he wrote a brief arguing that the state 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. The justices in that case ruled unanimously that the question lawmakers put on the ballot was deceptive and would have misled voters, and also that the Legislature failed to publish the text of the amendment as required by the constitution. Nielsen’s brief argued that the court’s ruling deprived voters of the right to decide the issue.
