Panel grills Utah Supreme Court nominee about representing abortion, redistricting cases

Third District Judge John Nielsen speaks during the announcement of his appointment to the Utah Supreme Court. (Alixel Cabrera/Utah News Dispatch)

Gov. Spencer Cox’s pick to become the new Utah Supreme Court justice cleared a hurdle Monday when a Senate panel recommended his confirmation. But not before he faced questions about his past role defending conservative actors in highly political legal cases, including abortion and transgender student sports participation.

The Senate Judicial Committee voted 5-2, along party lines, to recommend 3rd District Judge John Nielsen be considered for the justiceship. Democratic senators Stephanie Pitcher of Salt Lake City and Karen Kwan of Taylorsville, who cast negative votes, raised concerns about Nielsen’s background. Especially, Pitcher said, in a complex political climate.

Nielsen’s confirmation now goes to the full Senate for consideration.

SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

“My biggest concern is that this judge has found himself on one side of some very, very political questions that have been litigated,” Pitcher said during the hearing. “And while I appreciate the former commentary, that a good attorney can take both sides of an issue, that doesn’t appear to have been the case.”

Cox appointed Nielsen as a replacement for outgoing Associate Chief Justice John Pearce in October. Before Nielsen started his current role as a judge a little less than a year ago, he worked in both public and private ventures, including a stint as shareholder in a firm alongside former Utah Associate Chief Justice Thomas Lee, Sen. Mike Lee’s brother. 

During a first hearing with the same committee last Thursday, Nielsen faced questions about what would constitute “judicial activism” from Republican lawmakers, a phrase some of them have used when speaking about recent Utah Supreme Court decisions that have dismayed party leaders — like an opinion favoring plaintiffs in a lawsuit challenging the Legislature’s 2021 redistricting process, and a ruling upholding a district court decision to block a near-total ban of abortions in the state while it is adjudicated.

That’s a role that Nielsen said he isn’t interested in taking. 

“Keep me in my lane, and keep me doing the work of a judge rather than the work of the Legislature,” Nielsen said. 

But, during the questioning last week, Democrats were more interested in the clients he had represented in his private practice in high-profile litigation.

“Because you’ve been involved with so many cases that are inherently political,” Pitcher asked, “how will you ensure that litigants and the public can have confidence that you’ll be an objective, neutral, fact finder or arbiter?”

After mentioning that former U.S. Supreme Court Justice Ruth Bader Ginsburg, who was an American Civil Liberties Union lawyer before her appointment, sat in many First Amendment cases, making the court “better for it” with her expertise, Nielsen said the bench is populated with many former prosecutors and defense attorneys with no question that they can perform their duties.

“In fact, that’s a lot of value that they add is being able to sit on those cases because of the experience that they have,” he said. “So how would I do it? I would do as I have done in my current job, and as I pledged to do when I took this current job, which is to be fair and impartial to all who appear before me.”

On Thursday, when asked whether he would recuse himself from the abortion ban challenge, in which he participated in Pro-life Utah’s representation, and the redistricting case, where one of his clients was the Republican Party, both of which may appear in front of the court in the future, Nielsen said that he couldn’t commit to taking a particular action during his confirmation process for ethical reasons.

“But I can promise that I will follow the established rules for recusal,” he said.

SUPPORT: YOU MAKE OUR WORK POSSIBLE