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If it were up to gun-rights activist Charles Hardy, 3rd District Judge Robert Hilder wouldn't be in the running for a promotion to the Utah Court of Appeals.
Hardy's group, Gun Owners of Utah, is opposing Hilder's nomination - slamming the judge for upholding a weapons ban on the University of Utah campus and voting against installing gun lockers in state courthouses.
"We have concluded that he has a strong personal bias against the lawful carrying of self-defense weapons by private citizens," said an e-mail this week to hundreds of gun owners, urging them to lobby against Hilder. Hardy plans a similar alert against nominee Scott Daniels, a former 3rd District judge who, more recently as a Democratic lawmaker, has called for oversight of concealed weapon carriers and tighter control of sales at gun shows.
The electronic call to arms comes while intense political battles are under way against federal judicial nominees, attacks that critics say threaten judicial independence.
Hilder, one of seven nominees to replace retiring Court of Appeals Judge Norman H. Jackson, said Tuesday that ethics rules limit his response to the criticism. The guns-on-campus case is now on appeal before the Utah Supreme Court.
"I am not in a position to comment on a decision in a pending case," Hilder said, "but I do hope that a 10-year legal career on the bench would not be judged by a single decision."
Daniels declined comment, saying it is not appropriate for a candidate for judicial office to respond.
The seven candidates were selected by Gov. Jon Huntsman Jr.'s newly appointed Appellate Judicial Nominating Commission. Salt Lake City attorney David Jordan, who chaired the commission under Gov. Mike Leavitt, said it shuns a single-issue litmus test.
"Inherent in [Utah's selection process] is an expectation that what issues the public considers are important ought to be aired, but ultimately in the selection of a nominee . . . we have a tradition of judging candidates on the basis of overall merits and a career of experiences," he said.
Judges disappoint one side in every case, Jordan points out.
"A judge's ruling on a particular issue that leaves one person or group of people unhappy certainly deserves consideration, but it can't become a bar for the consideration of an individual to the judiciary," Jordan said. "It's one factor that has to be considered in a mix of factors."
But Hardy insists Hilder's gun-related decisions offer insight about his judicial philosophy.
"If you do not trust law-abiding citizens to defend themselves, what are the odds you're going to trust them to make other personal decisions about themselves?" Hardy asked. "The issue does serve as a powerful microscope under which to examine other underlying philosophies."
Applicants for the appeals court opening were asked by the Appellate Judicial Nominating Commission to provide a two-page answer to the question, "To what extent should a judge consider political, social, and economic consequences in decisions?
Alarmed by recent attacks against judges based on their rulings in high-profile cases, American Bar Association President Robert J. Grey Jr. last month called for a halt.
"The saber rattling in some quarters for retribution against judges in the wake of the Terri Schiavo case, and the draconian stance against the judiciary by some of this country's lawmakers, is troubling," Grey told the City Club of Cleveland. "An independent judiciary - one free of intimidation and manipulation - is essential to our government of separate but equal branches, where cooperation and respect among the branches is vital."
Meeting in Salt Lake City in February, the ABA approved new judicial performance evaluation guidelines, saying the process should not impair judicial independence and be "free from political, ideological, and issue-oriented considerations."
Huntsman will not speak about any of the Utah appellate nominees, spokeswoman Tammy Kikuchi said Tuesday. After a public comment period ends Thursday, Kikuchi said, "the governor will carefully review the names at that time and pick the best candidate."
Huntsman's choice will be his first judicial appointment.
Hilder made his controversial no-guns-on-campus ruling in August 2003, ruling in favor of the University of Utah's defense of its policy. The U. sued in 2002, after Utah Attorney General Mark Shurtleff issued an opinion challenging its claim that concealed weapons on campus would compromise academic freedom.
Hilder ruled the policy did not violate Utah law. The case, and the question of whether the policy violates the state constitution, is now before the Utah Supreme Court.
The judge recused himself following a news article in which Shurtleff said Hilder, through his ruling, had tipped his hat on the way he felt about guns. The article also quoted Taylorsville Republican Sen. Mike Waddoups - who sponsored gun-rights legislation - saying he didn't "know how Hilder ever came up with his decision."
In stepping aside, Hilder cited rules that require judges to recuse themselves if there is a perception - correct or not - of bias.
"In rare instances, a meritless perception of bias is as damaging to the public's confidence in the judicial process as the presence of actual bias," Hilder wrote explaining his decision.
The recusal means the case, if sent back by the appellate judges, will not return to Hilder.
Waddoups said Tuesday that he, too, is concerned about Hilder's gun-related decisions - the issue may be enough to compel him to vote against the judge in any confirmation hearing. Still, Waddoups says if Hilder is Huntsman's final nominee, senators will give him a fair hearing.
"Judges are going to rule on a lot more than one issue," Waddoups said. "The Senate's responsibility is to hear the whole story."
* Attorney Carol Clawson of Salt Lake City.
* Assistant Attorney General Laura B. Dupaix of Kaysville.
* Second District Judge Thomas L. Kay of Bountiful.
* Attorney Carolyn B. McHugh of Salt Lake City.
* Fourth District Judge Anthony W. Schofield of American Fork.
* Up until 5 p.m. Thursday, the public can send comments to nominating commission chair Von Keetch, c/o Administrative Office of the Courts, P.O. Box 140241, Salt Lake City, UT, 84114-0241.
* Once he receives a final list, Gov. Jon M. Huntsman, Jr. will have 30 days to make his appointment. The Senate Confirmation Committee will then take comment and hold a public hearing. The appointee must be confirmed by a vote of the full Senate.