As scrutiny of judges grows, lawmakers weigh changes to Wyoming’s selection process

FROM WYOFILE:

In her final official appearance before lawmakers, Wyoming Supreme Court Chief Justice Kate Fox defended the process for choosing the state’s judges. But some lawmakers still want changes.

For her final official appearance before a legislative committee, Wyoming Supreme Court Chief Justice Kate Fox visited Torrington on May 19 prepared to defend the state’s judiciary system.

Weeks before the meeting, the Wyoming Freedom Caucus had criticized the judiciary in a pair of blog posts. Citing recent court decisions and some judicial nominations, the caucus’ blog post alleged Wyoming’s process for selecting judges was shaped by “political insiders” and “left-wing institutional capture.”

Fox’s rebuttal came from the book of rules governing Wyoming judges.

“A judge shall not be swayed by public clamor or fear of criticism,” Fox read from the book, drawing from a chapter dealing with questions of external pressures.

“Our job is to follow the laws,” she added. “Not to be subject to the popular will, because what we do is often not popular.”

The Freedom Caucus’ push for lawmakers to scrutinize the state’s judiciary system comes as President Donald Trump and his allies increasingly clash with, and criticize, federal judges, even calling for their impeachment in some cases. It also comes as the state waits for a momentous decision from the Wyoming Supreme Court on whether legislative attempts to block abortion access are constitutional.

And for Fox, the scrutiny comes as her time on the bench ends. After 11 years presiding on the state’s high court, the law requires her to step down at age 70. Her last day is May 27. So, in an era where a new guard is changing Wyoming politics, the Joint Judiciary Committee meeting played host to a vivid, if respectful, exchange between the outgoing chief justice and a group of mostly freshmen lawmakers aligned with the Freedom Caucus.

Those lawmakers questioned Fox as to why Wyoming’s system for nominating judges was, in large part, walled off to public scrutiny, without elections or necessitating Senate approval for appointments.

Some of the changes suggested by lawmakers would open the judiciary to the kind of “political and financial influence” its rules currently guard against, Fox said.

But the Judiciary Committee decided to consider a significant change to the judge-nominating process at its August meeting in Casper. The committee voted 8-6 to have the Legislative Service Office draft a joint resolution that would ask voters if they wanted the Wyoming Senate to have final approval over the appointment of new state Supreme Court justices.

It was the second of two close votes as Rep. Jayme Lien, R-Casper, sought to find a path for the committee to take up a bill draft, against the wishes of its two chairmen — Sen. Jared Olsen, a Cheyenne Republican and attorney, and Rep. Art Washut, a Casper Republican.

Lien’s first motion, for a bill that would have changed state law without going to voters, failed on a tie vote. That bill would have required Senate confirmation for all new judges, not just supreme court justices.

The swing vote between the two motions was longtime Sen. Larry Hicks, R-Baggs.

Rep. Laurie Bratten, R-Sheridan, had sought to add days to the Joint Judiciary Committee’s meeting agenda for studying judicial reform — something Freedom Caucus leaders previously indicated to WyoFile they hoped a committee would explore during the time between legislative sessions. Olsen overruled that idea. Lien said she was moving for the joint resolution to ensure the committee scrutinizes the topic.

“Ultimately, I’d like the entire nominating commission to go away,” she said before a vote on her first motion, “but … we’re not going to get enough time to discuss that.”

Wyoming selects judges today under what is commonly called the Missouri Plan, where a commission reviews applicants and sends a limited set of choices to the governor for a final pick.

In Wyoming, the Judicial Nominating Commission is composed of seven people. Three are attorneys, elected from within the Wyoming State Bar, and three are non-lawyers who are appointed by the governor. The seventh member, who serves as chairperson and tie breaker, is the chief justice of the Wyoming Supreme Court.

Fox repeatedly told lawmakers she believed there already was public input in both the selection and retention of judges. In selecting judges, that comes principally because people can weigh in with the governor, who makes the ultimate decision on what candidate to nominate for a bench seat.

When a judgeship opens, the Judicial Nominating Commission fields and reviews applications for the position.

The names of applicants are not made public. Those names stay confidential for two reasons, Fox said. One is to allow practicing attorneys to apply without signaling to their clients or law firms that they’re pursuing a new job. The other reason, she said, is to insulate the nominees and the process from political pressure. Fox and two nominating commission members previously interviewed by WyoFile described the review of applicants as a study of their merits and judicial temperaments that includes feedback from attorneys and judges.

Once the commission vets candidates, it sends three nominations to the governor. At that point, the public can weigh in. That’s an option Freedom Caucus lawmakers have exercised in the past, such as when former Republican lawmaker Tim Stubson was among the three nominations in 2023 — Stubson was involved in fundraising and campaign efforts that sought to blunt the Freedom Caucus’ rise in the Legislature.

Gov. Mark Gordon picked Robert Jarosh for the bench over Stubson.

Judges also appear on the ballot in Wyoming, Fox noted. Though they’re appointed into office, voters have an opportunity to vote them out every four, six or eight years, depending on the level of court they serve in. State Supreme Court justices only face retention elections every eight years.

Notably, Fox said she and others in the judiciary would consider publicizing the names of applicants for judgeships while they’re under consideration by the Judicial Nominating Commission. “I think the court would be open to revising that process,” she said.

But on the whole, Fox questioned lawmakers’ motivation for scrutinizing the state’s third branch of government.

“I really need to push back on a lot of the basis for this conversation,” Fox said. “What really is the problem? We have some very good judges in Wyoming. So, before we start saying ‘how can we fix it?’ I really want to know what is wrong with it.”

The most recent polling available shows more residents approve of how the state’s judges handle their jobs than disapprove. In polling conducted last September and October by the Wyoming Survey and Analysis Center, only 13% of respondents told the center they disapproved of how judges handle their jobs, while more than 40% of respondents said they approved.

In its blog posts, the Freedom Caucus cited specific court decisions they didn’t like. Chief among them was a Teton County judge’s ruling against the Legislature’s 2023 abortion ban, and a more recent decision by a Natrona County judge to pause a transvaginal ultrasound requirement and stringent regulations lawmakers sought to place on Wyoming’s only abortion clinic, which is in Casper.

Rep. Tom Kelly, R-Sheridan, told WyoFile he did not believe the Wyoming judiciary system was in need of stringent reforms. But he said a series of politically charged court decisions — in both Wyoming and nationally — drew fresh attention to the way judges are selected in Wyoming, and people found the system opaque.

Publicizing the names of judicial applicants could allow people concerned about the system to better understand who was applying and who wasn’t making the cut, he said. “Anything that government institutions can do to be open and transparent will help bolster faith in our system again,” he said.

Lien’s proposal for Senate approval of new supreme court justices brings a major practical question with it: With a citizen legislature, the Wyoming Senate is only in session two months a year or less. Several lawmakers in Torrington questioned what would happen if a supreme court seat came open when lawmakers weren’t in Cheyenne.

In the moment, Lien did not have an answer for that question — saying she wanted to order a draft bill so the committee could craft a policy together at its next meeting.

While Lien only needed a majority of the committee to agree to draft the bill, there is a higher hurdle for the committee to vote to sponsor the bill when the Legislature convenes in 2026. The proposal will need the backing of a majority of the representatives and a majority of the senators on the committee for sponsorship.

And because next year’s legislative gathering is a budget session, such a bill would need to receive two-thirds support for introduction.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.

This story was posted on May 22, 2025.