The Appointments Process

When I was a child visiting my Leavitt grandparents, I often paused to read a letter of commendation written by the governor of Nevada to my Grandfather Leavitt upon my grandpa’s retirement from the State Highway Department. It hung in their living room.

I loved my Grandpa Leavitt already, but reading that letter affirmed that others valued him too—and appreciated the service he provided. Seeing those sentiments written on the letterhead of a governor’s office made me appreciate my grandfather even more.

One of the basic duties of the governor of Utah is to make appointments to an array of state boards, commissions, and offices—more than 2,500 of them. Some are for well-known roles like membership on the State Tax Commission, Board of Pardons, or as a trustee of a university or college. Others were for less glamorous service such as a member of the State Fair Board or on the Commission for Geographic Names. However, with rare exception, people find their public service to be a source of great satisfaction and pride. Regularly I hear introductions made or read an obituary listing service on a board or commission among the profound accomplishments of a person’s life. Every role had an impact and came with a special public trust.

Remembering the letter that hung on my Grandpa Leavitt’s living room wall and the impact it had on me as a grandchild, I resolved to make appointments to a public role as dignified as possible. We developed a large frameable certificate for those who served, and people displayed them with pride. I did my best to give each appointment the trappings of importance.

A Great Way to Serve

Boards and Commissions are a great way to involve people who have an appetite for public service. It is also a wonderful and appropriate way to reward competent political supporters. Early on in the administration, I had a list compiled of the people who had been strong supporters of mine in the campaign and asked the staffer overseeing the process to find places where their skills and interests matched. Years later, people who I appointed to various volunteer public service roles tell me what a wonderful experience they had and how much they appreciated the opportunity.

I resolved to make appointments to a public role as dignified as possible.

Boards and Commissions are important for several reasons. They help ensure that leaders are getting the perspective of citizens and experts, and many have real power delegated by the legislature so that decisions can be made without legislation. When power resides there, maintaining control of the executive branch of government requires having people who will be loyal.

In some cases, governors seek people out to serve. In others, many people step forward and aggressively pursue the position, and the governor has to navigate a politically sensitive landscape to identify and select an appointee.

These appointed roles had real impact, and at times, decisions created controversy.

Connie White, the new head of the Department of Commerce, recommended that Joe Ingles, the director of the Consumer Committee, an agency within Commerce tasked with representing individuals in utility rate matters, be replaced.

I had experience with both the Consumer Committee and director Joe Ingles prior to becoming governor. I agreed with Connie that Joe should be replaced. He had been there eleven years, but had actually said publicly that he was not accountable to the department or the governor. He believed he just worked for the Consumer Committee.

Not surprisingly, the Consumer Committee also believed they were completely independent. However, the law did not back them up. I authorized the replacement of Ingles and instructed that none of the current members of the Consumer Committee would be reappointed unless we had a very clear understanding of their role.

Acting on 2,500 separate appointments was a demanding effort requiring more time than the governor can personally allocate. I assigned Jeff Bennion, a staff assistant who had worked with me on the campaign, to steer the process. Later, Nancy Brown took his place. Lieutenant Governor Olene Walker was asked to oversee the process and issue approvals on my behalf. I maintained direct responsibility on a series of appointments that were the most sensitive. This included any full-time employed role, all the higher education appointments to Boards of Trustees and the Board of Regents, and a series of sensitive appointments such as the State Alcoholic Beverage Control Commission and Economic Development Board. Olene and the staff liaison would bring me recommendations, but all required my personal approval.

Judicial Selection

The appointments I spent the most time on were judges. Over nearly eleven years, I appointed fifty-nine trial judges, twenty juvenile court judges,

three members of the Court of Appeals, and five Utah Supreme Court justices — a total of eightyseven judges in all. A governor has no greater duty of care than when selecting the jurists who will pass judgment on matters of grave importance in the lives of the state’s citizens.

Utah has a very thoughtful system of judicial selection. In many states, the governor simply appoints judges, which in my opinion invites political favors. Other states allow for the election of judges, an even worse system.

In Utah, the governor appoints bipartisan judicial selection committees in each court district. These committees, under the direction of the Utah Courts administrator, receive applications and narrow the field to three candidates for the trial bench, five for the appellate court and seven for the Supreme Court.

Typically, my staff would interview the candidates first. Then, after reviewing their applications, I interviewed them, along with my chief of staff, legal counsel, and Camille Anthony, director of the Commission on Criminal and Juvenile Justice.

Although I conducted more than 250 judicial interviews, each interview was always a big deal because I wanted to choose capable people. Candidates are always nervous; being made a judge represents a major career event, and people have their reputations on the line. Their colleagues and associates know who is a finalist, and if a candidate is never selected, that candidate feels professionally diminished.

For the district court bench, I did not see it as my job to evaluate the person’s prowess as an attorney, though it was generally evident from the application and from people we spoke to about the candidate. (If we sensed someone was deficient, they were eliminated.) I felt it part of my responsibility to discern a candidate’s temperament, judgment, and judicial philosophy. I tried to imagine them judging me or one of my children.

My usual pattern was to ask them open-ended questions. For example, I would invite them to construct a ten-minute oral autobiography. I would evaluate several aspects of their response. Some

would simply list dates, schools, and degrees to describe their life journey. However, the candidates that stood out were the ones that related experiences that had shaped them. They would talk about what they had learned from difficult or unusual experiences. I would probe to understand how these experiences had shaped them. I came to believe that people who found and could express learning from their own experiences would be better judges than those who didn’t.

Sometimes I would ask them to tell me about their most important mentors and what they learned from them. This gave me a chance to gauge the nature of their relationships. Another favorite was, “As you thought about this interview, I’m guessing there were some things you wanted to convey to me. What are they, and why was it important to convey it?”

I looked for signs of hubris or self-absorption, and I was drawn to people who had a natural sense of humor. I would often invite a candidate to tell me about a judge they admired most and why. Interestingly, an astounding number of candidates listed Judge David Winder of the federal district court as the judge they admired most.

I would also ask them to describe (without naming the person) an experience with a judge that caused them to think less of that judge. In addition, while I didn’t always ask directly, I also looked for the way they valued their family. This was particularly important for juvenile judges.

Most candidates were asked about the process they used in making the decision to apply. I used this question to measure their commitment to becoming a judge and to understand the way they went about making decisions.

I felt there were limits to the appropriateness of asking for views on specific political issues, so I developed a questioning technique where I would tell the candidate that I was going to say a series of words or phrases and I would like him or her to simply respond with thoughts they had about that subject. I would then toss out words such as: industry regulation, healthcare, open space, life, preservation, guns, tenure, church and state. One

candidate remarked afterward that this was like “verbal truth serum.” The value of this word exercise is that it allowed me to find out how well informed a candidate was, and often they provided insights into their value system.

I will confirm the decision tomorrow, I want to think about it overnight.

One candidate we were considering blew himself out of the water during this exercise. One of the words was “guns.” He said, “I love guns. In fact, I’m a terrific shot. I can hit a target the size of a quarter at five hundred yards.” When interviews were over, the others who interviewed candidates and I would typically compare notes. None of us could remember anything after his quite evident exaggeration. We laughed about it for days.

Pre-Decision Routine

At first I found choosing among five qualified, high-quality people painful. It made me a bit anxious because I wanted to choose “the right” person. Sometimes I would be tempted to put the decisions off or worry afterward. I knew I had to become a better, more decisive in making these and other decisions.

I created a personal routine that helped me make decisions in a timely way. It is quite common in sports and other areas of performance for an athlete to develop a pre-shot routine. For example, a foul shooter in basketball may have the routine of taking a deep breath, bouncing the ball three times, and on the third time, they move the ball in rhythm above their head and shoot. Whatever the routine, the sense of familiar motion calms the player and improves their outcomes. I needed a pre-decision routine so that I could be calm and my outcomes could be improved.

When I had a judge to choose, I would study the names, do the interviews, and consult with others. Then I would schedule a time when I could be alone in a small private office I kept. During that time, I would force myself to decide which person to nominate. Even if I was not sure, I would make a decision.

Once I had made a decision I would offer a prayer. To be clear, I was not asking God to tell me who the judge should be. I prayed to be comfortable with the decision. I would then walk from my office to the office of the staff member in charge of judge appointments and give them the name. I would then say, “I will confirm the decision tomorrow, I want to think about it overnight.” Somehow, knowing that I could alter the course if I needed to allow time for the comfort to come. Most of the time, the next morning I felt fine about the decision and we proceeded. However, occasionally I altered my direction because I could not get comfortable with it. Sometimes I knew why and other times I did not. When I needed to pick someone else, I would repeat the process with another name.

Because I could choose only one person among multiple candidates, there was always a greater number who didn’t get selected, most of whom were well qualified. Many of them wisely continued to apply. Once the judicial nominating committee felt a person was appointable, they sent them as part of the applicant panel again and again. There was an element of patience required; rarely did a person get appointed the first time. Often, we saw people three or four times before appointing them. Occasionally, we would send a message to a member of the selection committee that a particular candidate was not likely to be appointed.

Typically, I would have my colleagues call all of the candidates back to tell them the results of the interviews. We would offer encouragement to the ones we hoped to see again.

Amid one ongoing selection process, I was in Vernal for a parade. It was a typical rural Utah parade where you would go a half block between observers. However, on this particular day, a sign caught my eye. It was held by a fourteen or fifteenyear-old boy. It said, “Choose (judicial candidate’s name) as Judge. He’s my dad!” I was impressed that a son would do that. I was careful not to let the experience affect my decision but, as it turned out, I did select his dad. I told my legal counsel, Gary Doxey, that I wanted to handle this one personally. I called the home, got a hold of the son and asked him to convey the news to his father.

Supreme Court and Court of Appeals

Our approach to appointing Supreme Court and Court of Appeals judges brought an even greater level of deliberation. Some candidates managed the interview with me better than others. The good ones had a strategy designed to make themselves the most attractive.

In 1994, my first opportunity to appoint a judge came about by virtue of a retirement. Among the candidates was a seasoned Court of Appeals judge, Leonard Russon. Judge Russon was in his late fifties or early sixties, and I feel confident he understood a governor likes to appoint people who will serve a long time on the court. He did a good job on the interview, and then at the very end he said, “You might naturally look to appoint a person younger than me to the court with the expectation your impact would endure. I want you to know that if I have the privilege to serve, I will retire while you still have enough time to appoint my replacement. He had certainly anticipated my thoughts. I appointed him and the judge kept his word. I appointed his successor in 2003.

On two different occasions—in 2000 and 2003—we had two seats to fill on the Supreme Court at the same time. It was extraordinary, and evident that we would be remaking the entire court. We developed models of what we wanted the court to look like.

We went through a very deliberate process, thinking about how to formulate an effective court. My chief of staff Rich McKeown mapped it all out on a white board, listing the three current court justices and their attributes, juxtaposed with the nominees we were discussing. Since it was two vacancies, and involved the Supreme Court, we had fourteen candidates to consider.

One key decision was whether we wanted the highest court to be a synchronous panel of likeminded individuals or to mix in someone eminently qualified who maybe brought a different approach to deliberation and reasoning. We decided to move away from any cookie-cutter approach and go more in the direction of unique views, choosing Ronald Nehring and Jill Parrish as justices. In 2000, the other year with two appointments, I chose Matthew Durrant and Michael Wilkins.

Looking back, with the exception of one or two people, I believe the quality of people I appointed to the bench was high because I took the decisions very seriously.