These points may seem obvious, but they bear repeating in view of the appointment practices of our former governor, Mike Leavitt. Most of his judicial appointments were based primarily on how they would further his own political career. Specifically, rather than appointing judges on the basis of competence, experience, and judicial philosophy, Leavitt was most concerned with racial, gender, and religious “diversity.” He was influenced by the media, which typically announces judicial nominees in the superficial terms of race, gender, and religion rather than professional experience and qualifications. Leavitt’s appointments more nearly resemble the “rainbow coalition” of the Democratic Party than the traditional values of professional merit and judicial conservatism espoused by the Republican Party. As a result, we have liberal or inexperienced judges who are a law unto themselves, who create rights nowhere written in the constitution, who refuse to enforce statutes and contracts as written, and who instead enforce their own views of equity and public policy.

As you know, the judicial branch of government was never intended to be a representative branch, as are the legislative and executive branches. The judicial branch was to be insulated from political forces so that judges could decide cases solely on the basis of their unbiased view of the facts and the law, rather than on the basis of opinion polls or the race or other status of a party. Nothing in the constitution or the law requires that judges “reflect” the race, gender, religion, or other immutable characteristics of the public or parties they serve. Judges must be selected solely on the basis of professional experience, qualifications, and commitment to follow the law.

Contrary to popular notion, there is no inherent advantage in “diversity” of immutable characteristics in the judiciary such as to justify its achievement by artificial means or social engineering. Neither is there any disadvantage to diversity that occurs naturally over time with an increasingly diverse population. Leavitt and his people were fond of saying that if other qualifications of candidates are equal, race and other factors should be considered. However, professional qualifications, experience, and ability are rarely, if ever, equal.

In summary, appointment of judges should be based on qualifications and competence, not on the basis of race, gender, or religion. To base judicial appointments on the race, gender or other immutable trait of the candidate violates not only the principles of the Republican Party, but the guarantees of our constitution to equal protection of the law. I request your response to this inquiry prior to the state convention. Let’s return a true Republican to the governorship. Thank you for your willingness to serve and for your commitment to help preserve the essential features of a competent and independent judiciary.