Copyright Salt Lake Tribune
Gov. Spencer Cox’s nominee to fill a vacancy on the Utah Supreme Court, Judge John J. Nielsen, declined to say Thursday if he would recuse himself from contentious cases — including an abortion dispute and the state’s redistricting fight — that he has been involved in and could still land in front of the justices. Pressed on the issue by Sen. Stephanie Pitcher, D-Salt Lake City, during the first of two days of confirmation hearings, Nielsen said he could not commit to taking a specific judicial action, but said he’ll “follow the established rules for recusal.” Before Nielsen was appointed to the 3rd District bench a year ago, he was in private practice, originally with former Supreme Court Justice Thomas Lee, the brother of Sen. Mike Lee, and later at the firm of Schaerr I Jaffe. During that period, Nielsen filed a pair of Supreme Court briefs supporting the state’s near-complete abortion ban and in arguing for a constitutional amendment that would have let the Legislature repeal citizen-passed ballot initiatives. Nielsen said that in the year that he has been on the court, he has had time to set aside advocacy. Nielsen told Pitcher that it is not uncommon for attorneys who have been prosecutors and defense attorneys to end up on the bench and decide cases that deal with issues they have previously advocated for or against. “Any lawyer who has ever had any case knows … that you are a means to someone else’s end, and that you are making arguments on behalf of clients and not the other way around,” Nielsen said. In the case of State v. Planned Parenthood, Lee and Nielsen filed an amicus brief — often referred to as a friend-of-the-court — on behalf of Pro-Life Utah, challenging a decision by a lower court to block a state law that would have outlawed almost all abortions in the state. The brief laid out an “originalist” argument, which Nielsen said Thursday is key to his judicial philosophy, drawing on newspaper articles written between the 1850s and 1940s to make the case that, during the period the Utah Constitution was ratified, Utahns did not envision it including a right to abortion. “At the time of ratification, the general public did not view abortion as a protected constitutional right,” the brief argues. “Quite the opposite. It viewed it as something meriting the utmost condemnation available in our law and society: criminal charge and punishment.” The justices were unpersuaded, ruling that the lower court judge did not abuse their discretion in blocking the abortion ban from taking effect while the parties continue to litigate the merits of the ban. That lawsuit is ongoing, and the law remains enjoined. The second brief was filed in the ongoing litigation over the Better Boundaries initiative, the 2018 ballot measure sought to create an independent redistricting commission to draw political boundaries and to ban partisan gerrymandering. The Legislature largely repealed the voter-approved measure, which the Supreme Court said violated citizens’ constitutional right to make law through the initiative process. The Legislature responded by proposing to change the constitution to make it explicit that the Legislature can repeal a ballot initiative. The court blocked that after the justices ruled the description of the amendment on the ballot was deceptive and that the Legislature failed to comply with a constitutional requirement that the language of the amendment be published in newspapers statewide. Nielsen authored an amicus brief arguing the Supreme Court’s decision was wrong and it had deprived voters of the right to decide the issue — which would have effectively taken voters right to make or change the law. The brief was filed on behalf of 10 voters who wanted the amendment to go forward. Nielsen said Thursday he also believed the Utah Republican Party was a client on that issue. The party, whose members have supermajorities in both the Utah Senate and House, is not listed on the brief. Nielsen has also represented the state in defending a law passed by the Legislature that banned transgender girls from competing in girls’ high school sports and a case brought by a group of downtown business owners against Salt Lake City, alleging the city was responsible for damage to their property because it failed to address the homelessness issue. Sen. Todd Weiler, who chairs the confirmation committee, likened the situation to former Supreme Court Justice Thurgood Marshall, who made his name as an attorney fighting for civil rights, including arguing the Brown v. Board of Education case that ended school segregation. “Should the Senate not have confirmed him because of his prior clients?” Weiler asked. “There’s a perfect example … when somebody is a civil rights attorney and they’ve done that work, it doesn’t mean that they can’t be a judge on civil rights cases,” Nielsen replied. “In fact, that’s where they can contribute a lot of perspective, having litigated in that area, and that certainly wasn’t a reason to keep them off the U.S. Supreme Court. In fact, that’s what a lot of his legacy is tied to.”
