A sitting district judge and private sector lawyer are in line to join Utah’s highest court.
Gov. Spencer Cox nominated Judge Matthew Bell and Michael Menssen on Aug. 28 to fill out the remaining vacant seats on the Utah Supreme Court after the retirement of Chief Justice Matthew Durrant and resignation of Justice Diana Hagen in May.
Bell currently serves as the presiding judge in the state’s Fifth District Court, which covers Beaver, Iron and Washington counties in Southern Utah, a posting he has had since former Gov. Gary Herbert appointed him in 2017. Michael Menssen is a partner at Mayer Brown LLP in Salt Lake City and worked at other private law firms earlier in his career.
The appointments come in front of the backdrop of rising tensions between the judiciary and the other branches of government in Utah. High-profile rulings on redistricting and abortion led to open hostility from the state’s supermajority Republican Legislature, and earlier this year lawmakers voted to expand the state Supreme Court by two justices for a total of seven. Cox has already filled the two vacancies created by that change and another the previous year after Justice John Pearce retired. After Chief Justice Durrant’s retirement and Justice Hagen’s resignation, the makeup of the Supreme Court has been remade by Gov. Cox.
At a press conference announcing the appointments, both Bell and Menssen spoke of the importance of originalism to their respective judicial philosophies. Popular in the conservative legal movement, originalism advocates that legal documents, especially the U.S. Constitution, should be interpreted as they were understood at the time of their adoption.
Bell said he understands the “profound responsibility that this appointment carries” and said honoring his oath to the Constitution means recognizing the “essential yet limited role of the courts. It means applying the law faithfully and objectively as it is written, not as we wish it to be.”
Before taking the bench, Bell served nine years as an assistant United States attorney for the District of Utah, as well as a trial attorney for the U.S. Department of Justice Antitrust Division. Before becoming a lawyer, he worked in law enforcement. Bell received his law degree from the Brigham Young University J. Reuben Clark Law School.
Menssen called the opportunity to serve the state as a Supreme Court justice an “honor of a lifetime” and praised the quality of the state’s judiciary. Menssen also said he does not expect to always agree with the opinions of his future colleagues and called debate in the legal process a “healthy part of our system.”
“Both judges and citizens can vigorously disagree about matters of constitutional and statutory interpretation without questioning the good faith and patriotism of those who disagree with them,” he said.
A career attorney, Menssen received his law degree from the University of Virginia School of Law.
Echoing Bell, Menssen expressed his belief that “courts must not go beyond the bounds of what has already been enacted into law,” saying that courts “must not impose their own political judgments over those of the political branches, I believe it is the role of the court to say what the law is, not what the law should be.”
Sen. Stephanie Pitcher, one of two Democrats who sit on the Senate Judicial Confirmation Committee, is surprised that neither of Cox’s picks have past judicial appellate experience.
“You get to the Supreme Court after going through a lower court process,” she said. “So the Supreme Court is hearing appeals from either the district court or the court of appeals, and that is the job. And so, having that experience is critical to doing it well, I think.”
For her, that omission is a red flag.
“I think that the governor has appointed very qualified candidates,” she said. “It's not to say that they're not qualified, but I don't know that we've selected the most qualified candidates for this specific role.”
With the picks of Bell and Menssen, Cox has nominated five Supreme Court Justices in less than 12 months, with now-Justice John Nielsen taking the bench last fall. The changes signal a new era for the court with a majority of justices on the bench on the job for less than a year.
In response to criticism that Cox’s recent appointments amount to court packing, the governor brushed those opinions off and pointed out that he did not expect Durrant’s and Hagen’s seats to open up and is “just fulfilling my constitutional duty to fill these seats.”
Cox went as far to say that he hopes the court does push back on him and the Legislature when they feel like the other branches have overstepped, adding that nothing about the judicial nomination process should make justices “feel beholden to me for appointing them, beholden to the Senate for confirming them.”
“I'm not interested in having seven people on the court that think exactly like me,” Cox said. “That's not good for the court. It's not good for the law. We want people with different backgrounds. We want people who will push back on each other. And it would be a very terrible court if there were seven Spencer Coxes on that court.”
Despite the ongoing tensions between the branches, Pitcher said she has no reason to believe that any more Supreme Court justices plan on leaving. If anything, Democrats like Pitcher see these most recent nominations as a resolution of sorts to the drama of the past few years.
“I'm not aware of any additional movement, and so it seems like with the appointment of these two additional judges, that resolves,” she said. “I think it's been a very political process, and the Supreme Court should not be a political position. It's a judicial position.”
The state Senate still needs to approve Bell and Menssen’s nominations, first in the Judicial Confirmation Committee, then by a vote from the full body.
