The Utah State Senate has received a lot of criticism for failing to confirm Gov. Jon Huntsman Jr.’s nomination of Third District Judge Robert Hilder to fill a vacancy on the Utah Court of Appeals. The Senate however, was well within its rights to reject Hilder’s appointment to the Court of Appeals.
Hilder is best known as the state judge who presided over the U’s suit against the attorney general over its ban on guns on campus. Hilder ruled that the university could prohibit holders of concealed weapons permits from bringing guns to the school, notwithstanding Utah’s new concealed weapons law.
The confirmation of a judicial appointment is an important matter, especially the appointment of an appellate judge, and should not be taken lightly. There were three issues in the case of Hilder’s nomination that would have justified a “no vote” on the part of the senators.
The gun issue was the most obvious and controversial. The U’s ban on guns carried by legally licensed concealed permit holders was more of a feel-good measure than an actual safeguard for the university community.
Concealed permit holders are an exceptionally law abiding group. Florida pioneered “right to carry” permits and has the highest number of them in the country. Statistics compiled by the state’s Division of Licensing show only 0.01 percent of permits have been revoked due to crimes by permit holders involving guns.
On the other hand, Virginia Tech’s strict anti-gun regulations did not stop Seung-Hui Cho from carrying out the murder of 32 innocent people. What the ban at Virginia Tech did do was ensure there was nobody nearby with a legal concealed weapon who could stop the killing, as happened at Trolley Square last year.
Whatever the merits were of the U’s ban as a policy matter, Hilder would have been justified in ruling against the attorney general if he had a solid legal basis to do so. The U’s contract theory, however, was exceptionally weak, even with the ambiguities in the concealed carry statute at the time. Hilder resolved the case by granting summary judgment against the attorney general, rather than hearing the case on its merits. Hilder would not even hear out the attorney general. This raises serious questions about just how ready Hilder is to follow the law as opposed to his own beliefs.
The second issue is judicial demeanor, or how the judge treats those who have to appear before him in court. Although he was praised by a number of attorneys and received high marks for demeanor on attorney surveys, questions still remained.
Sen. Lyle Hillyard, a supporter of Hilder, said Tuesday, “I had some reservation about his demeanor, how his case for confirmation was presented to us, and comments he had made to the press about cases that, while his involvement may have been concluded, were still pending in the judicial process and his earlier involvement and thus these comments could impact the case.”
Judges are only human and subject to the same emotions as the rest of us. At the same time, the Utah Code of Judicial Conduct provides “A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others.”
No judge who has a serious problem living up to this standard should remain on the bench, much less advance to a higher court8212;just ask anybody who has ever been bullied by one.
The Senate had received literally hundreds of letters and e-mails against the confirmation of Hilder. Hillyard said of this outpouring, “In my 24 years of service in the Senate, I cannot remember a nominee receiving such opposition.”
How well informed those who contacted the Senate are is an open question, but it is a question that can be asked about any form of popular input in the democratic process.
Hillyard defers to the choice of this approach by “the founders of the (Utah) Constitution” and said, “This process is the only time that the public has any input.”