(concurring and dissenting):
I concur that the judicial nominating commissions are constitutional, but I dissent from the majority’s holding that the law requiring Senate consent to judicial appointments is unconstitutional.
In brief, I differ with Judge Bullock’s opinion that the challenged legislation constitutes an unconstitutional legislative exercise of an executive power, because that opinion fails to show that the power to appoint judges is an executive power under the Utah Constitution. (Part III herein.) I differ with Justice Howe’s opinion that this legislative involvement in judicial selection violates the separation of powers by giving the Legislature “control” over the judicial branch, because I see no such control on the facts of this case. (Part IV herein.) While I agree with Justice Stewart’s opinion that Senate confirmation of juvenile court judges is constitutional, I differ with his conclusion that Article VII, § 10 prohibits Senate confirmation of judges who are subject to contested elections, because in my view that section neither applies to this case nor describes confirmation and election as mutually exclusive alternatives. (Part V herein.)
I. SEPARATION OF POWERS
Separation of powers is a foundation principle in our national and state constitutions. In combination with the complementary devices of checks and balances, separation of powers restrains and regulates the exercise of government power in order to protect individual liberties.
Experience with constitutional government has taught that separation of powers must be applied in a practical rather than a doctrinaire manner. The theoretical separateness and independence of each branch of government is important, but something more is needed to assure that the initial independence of one branch will not be used in practice to infringe upon the independence of another, and to assure that the three branches will harmonize their efforts into an effective government. As the United States Supreme Court observed in its most recent holding on the separation of powers in the United States Constitution:
Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government.... The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.
Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). To counter that danger, our constitutions contain a system of checks and balances under which one branch can directly forestall another branch or participate to some extent in its functions.
This counter-balancing or sharing of powers is not inimical to the principle of separation of powers as that principle is implemented by our constitutions. The objectives of separation of powers are, in fact, achieved more by a dynamic relationship of interdependence among the three branches of government than by doctrinaire walls of *695separation dividing them. Justice Robert Jackson gave classic expression to that idea in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952), which has been quoted and adopted by the entire Court in two subsequent cases on the separation of powers, Buckley v. Valeo, 424 U.S. at 122, 96 S.Ct. at 683, and United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974):
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but independence, autonomy but reciprocity.
-A noted constitutional scholar has summarized the practical meaning of the doctrine of separation of powers in these words: “Thus, along both dimensions, that of federalism as well as that of separation of powers, it is institutional interdependence rather than functional independence that best summarizes the American idea of protecting liberty by fragmenting power.” L. Tribe, American Constitutional Law, p. 17 (1978).
The principle of separation of powers should therefore be viewed not only in terms of the functional independence of each branch of government, but also in terms of the inevitable and desirable interdependence of each of the three branches, which áerves the same purpose.
In the Utah Constitution, the principle of separation of powers is expressed in Article V, § 1, which reads as follows:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
The two clauses of this section express distinct but complementary aspects of the principle.
The reference to “distinct departments” in the first clause establishes the separateness and independence of each branch of government. It therefore prohibits one department from controlling, dominating, or coercing another to the point that it lacks independence in performing its functions, including its serving as a check upon the other two branches of government. E.g., Humphrey’s Executor v. United States, 295 U.S. 602, 629-30, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935). Justice Howe’s opinion, discussed in Part IV herein, relies on this principle.
The prohibition in the second clause against an official in one branch “exer-cis[ing] any functions” pertaining to another branch is an application of the principle of separation of powers to a circumstance falling short of control or domination but amounting to an invasion by one branch of a part of the prerogatives or functions of another. E.g., Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970); Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928). Judge Bullock’s opinion, discussed in Part III herein, relies on this clause.
The reasons for my dissent are elaborated in Parts III, IV, and V. Part II provides essential background by reviewing the history and constitutional basis of the power of judicial selection in this state.
II. HISTORY
From the time of statehood until 1945, district and supreme court judges were chosen by popular election, as required by the original provisions of Article VIII, §§ 2, 5 of the Constitution. Candidates were nominated in political conventions. Article VII, § 10 authorized the Governor to fill vacancies in- these offices by appointment, with the appointees serving until their successors were elected and qualified as provided by law. These specific provisions kept judges from being selected under the general provision in the first sentence of Article VII, § 10, still in effect, which provides:
*696The Governor shall nominate, and by and with the consent of the Senate, appoint all State and district officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for.
By constitutional amendment effective in 1945, these provisions for the election of judges were deleted, and the following was added to Article VIII, § 3:
Judges of the Supreme Court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however, that selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law.
From 1945 until 1951, district and supreme court judges continued to be chosen by popular election pursuant to the final proviso of Article VIII, § 3, since the Legislature had not exercised its delegated power to pass a law providing otherwise. In 1951, the Legislature provided for nonpartisan election of district and supreme court judges on the so-called “headless ballot.” 1951 Utah Laws ch. 38. The Governor filled vacancies by appointment to serve until the next election. Article VII, § 9.
In 1967, the Legislature enacted a law establishing a judicial nominating commission, consisting of the Chief Justice of the Supreme Court, one commissioner chosen by the Senate, and one by the House of Representatives, two by the Governor, and two by the Utah State Bar Association. The Governor was authorized to fill vacancies in the supreme and district courts “by appointment ... of one of three persons nominated” by the judicial nominating commission, but the persons so appointed were subject to election by the voters at the next succeeding general election. 1967 Utah Laws ch. 35.
Since 1967, district and supreme court judges have been appointed by the Governor from the three persons nominated by the judicial nominating commission. In those 14 years, which included the selection of numerous judges, the nominating commissions have not been challenged as a violation of the separation of powers. In fact, the commission’s composition of designated representatives of all three branches of government and of the legal profession, who must be equally divided according to political affiliation, seems well calculated to offset concerns about disproportionate influence from any particular faction in the selection of judges. Limiting the Governor to appointing one of three persons so nominated is an appropriate implementation of the constitutional command that “selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations.... ” Article VIII, § 3.
The controversy in this case arose in 1981 when the Legislature, over the Governor’s veto, provided that the Governor’s appointments of district, circuit, juvenile, and supreme court judges must be made “with the advice and consent of the Senate.” 1981 Utah Laws ch. 106, §§ 1, 2, 3.
III. SELECTION OF JUDGES AS AN EXECUTIVE POWER
It is easy to demonstrate that the separation of powers principle in the Utah Constitution forbids legislative exercise of a function of another branch. That circumstance is covered by the plain language of the second clause of Article V, § 1, and that was the holding in Rampton v. Barlow, supra, (executive function), and In re Hanley’s Estate, 15 Utah 212, 49 P. 829 (1897) (judicial function). There will be circumstances where it is difficult to distinguish between the forbidden intermingling of functions, on the one hand, and the inevitable and desirable interdependence of the three branches of government, on the other. But that difficulty is not a matter of controversy in this dissent. My difference with Judge Bullock’s opinion lies in my conclusion that it has failed to demonstrate *697that the power to select judges is one of the “functions appertaining to” the executive department under the Utah Constitution. Unless the Constitution confers that power on some branch other than the legislative, the second clause of Article V, § 1 obviously does not condemn the exercise of some of that power by the legislative branch.
The assertion or assumption that the appointment of judges is an executive power or function is an explicit premise in Judge Bullock’s opinion and is implicit in the other opinions explaining the majority’s result. But the existence of such an important power must be demonstrated by identifying its source. Questions addressed to the sources of government power are not technical or academic questions. The courts should be vigilant to scrutinize the sources of, as well as the limitations upon, the powers exercised by any branch of government. Since it is not granted expressly in our Constitution, any executive power of this nature must be inherent in the executive or impliedly granted in other provisions of the Constitution.
Article I, § 2 of the Utah Constitution expresses a fundamental principle of American political life: “All political power is inherent in the people; . .. . ” The executive, legislative, and judicial branches of government may exercise only the powers conferred on them by the people through the Constitution or through statutes enacted under the Constitution. Conversely, if the people have not conferred a power on any of these branches of government, they do not have it. The idea that the executive can possess a power not actually delegated by the people typifies a monarchy and is repugnant to a republic where the people, not the crown, are sovereign.
Our Constitution does not expressly confer the power to appoint judges on the executive or on any other branch of government. Until 1967, the Constitution provided that judges would be selected by popular election, with executive power to fill vacancies until the next election. Since 1967, judges have been appointed by the executive pursuant to statutory authority in the legislation creating the judicial nominating commissions. The power to enact that legislation was specifically conferred by Article VIII, § 3 of the Constitution, quoted above. The only constitutional provision authorizing executive appointment of judges is the general provision in Article VII, § 10, also quoted above, which provides that the Governor shall appoint “by and with the consent of the Senate” all state and district officers whose appointment or election is not otherwise provided for.
The Utah Constitution provides no basis for an implied power in the executive or Legislature to appoint judges. The very existence of an express constitutional provision (Art. VIII, § 3) specifying that judges shall be selected as provided by law stands as an insurmountable barrier to the existence of an implied power on the same subject. The separation of powers provision in Article V, § 1, which forbids one branch from exercising “any functions appertaining to either of the others,” provides no basis for implying a power of judicial selection in any branch of government. “The separation of powers is a limitation and not a grant” of power; “it does not designate the character of the appointive power....” 1 Sutherland, Statutes and Statutory Construction § 3.20 (4th ed. D. Sands 1972).
The power to select judges is not inherent in the executive or any other branch of government. The idea of inherent powers is repugnant to our government of popular sovereignty and delegated powers.
Tradition obviously demonstrates the acceptability and workability of executive appointment of judges, just as in the United States Constitution, where judges are appointed by the executive with the consent of the senate.1 Like Utah, a large majority of states have executive appointment of judges. But this “tradition” proves rather than contradicts the rule that the power to appoint judges is not inherent in the executive. A majority of state governors exer*698cise judicial appointive power — usually to fill interim vacancies — for the straightforward reason that a majority of state constitutions expressly grant their governors this power.2 In a few states, the legislature appoints judges,3 or dominates the selection process,4 a practice that also prevailed in five of the original thirteen states at the time the United States Constitution was adopted.5 But these practices do not prove that the power of judicial selection is inherent in the Legislature, only that the power resides where the individual states, through their constitutions, have seen fit to place it.6
So far as I am aware, the authorities are unanimous in holding that the power of judicial selection is not an inherent executive power. E.g., State ex rel. Swope v. Mechem, 58 N.M. 1, 265 P.2d 336, 338 (1954); 48A C.J.S., Judges §§ 12, 13 (1981); 46 Am.Jur.2d, Judges § 9 (1969). In fact, the weight of authority holds that the power to appoint nonjudicial government officers does not reside in the executive inherently or by implication, but only as specifically granted by state constitutions or statutes.7 As to judicial officers, the opinions of members of the majority have failed to cite a single state whose governor exercises the power to appoint judges inherently, by implication, by tradition, or by any authority other than a specific grant of such power by the constitution or laws of the state.8
Since there is no basis for holding that the Utah Constitution makes the power to appoint judges an executive power, I cannot see how legislative participation in the selection process can violate the second clause of Article V, § 1. The irony behind the majority’s argument of unconstitutionality is that the source of the executive power to participate in the selection process is pre*699cisely the same as the source of the legislative power to participate. Both branches trace their authority to the same statute enacted pursuant to express delegation in the same constitutional provision, Article VIII, § 3, quoted above. I cannot see how this law can be constitutional as to the Governor’s power and function but unconstitutional as to the Legislature’s power and function.
IV. LEGISLATIVE CONTROL OVER THE JUDICIARY IN THE APPOINTMENT OF JUDGES
Article V, § 1 of the Constitution provides that “[t]he powers of the government of the State of Utah shall be divided into three distinct departments ... . ” I agree that there is a point at which one branch’s control over another would violate the distinctness mandated by this section. However, I do not agree that that point has been reached in this case.
Justice Howe’s opinion argues that Senate consent to judicial appointments, in combination with the Legislature’s right to designate two members of the seven-member judicial nominating commission, tips the scales into unconstitutionality by giving the Legislature, in effect, unlimited control over the judicial branch. I dissent from that conclusion, since I believe that the level of legislative control over the judicial branch in the statutes at issue in this case falls far short of offending the prohibition against one branch controlling or dominating another. The procedure outlined in these statutes exemplifies the sharing of powers and the interdependence of different branches of government discussed in Part I, which are familiar manifestations of separation of powers and checks and balances. Indeed, despite the variety of appointment and removal provisions at work in the 50 states of our nation over its 200-year history, the majority has failed to cite a single case where a law has been held unconstitutional on the basis of one branch’s control of another. This suggests that more than minimal control is required for a finding of unconstitutionality.
In determining the constitutionality of the level of legislative control of the judiciary permitted by the appointment legislation challenged here, we must be mindful of two vital principles of law and construction. First, statutes are presumed to be constitutional, and will not be invalidated if, resolving every reasonable doubt in favor of their constitutionality, there is any reasonable basis upon which they can be sustained. Zamora v. Draper, Utah, 635 P.2d 78, 80 (1981); Greaves v. State, Utah, 528 P.2d 805, 806-7 (1974); Trade Commission v. Skaggs Drug Centers, Inc., 21 Utah 2d 431, 446 P.2d 958 (1968); State v. Packard, 122 Utah 369, 373, 250 P.2d 561, 563 (1962); Broadbent v. Gibson, 105 Utah 53, 62, 140 P.2d 939, 943 (1943). Second, “It is a well-established rule of constitutional law that where there are two alternatives as to the interpretation of a. statute, one of which would make its constitutionality doubtful and the other would render it constitutional, the latter will prevail.” Wagner v. Salt Lake City, 29 Utah 2d 42, 49, 504 P.2d 1007, 1012 (1972). Accord, Gord v. Salt Lake City, 20 Utah 2d 138,143, 434 P.2d 449, 453 (1967); State Water Pollution Control Board v. Salt Lake City, 6 Utah 2d 247, 255, 311 P.2d 370, 375 (1957). As a result of these well-settled principles, all doubts must be resolved in favor of constitutionality, and the Court is obligated to adopt any reasonable construction of a statute that will assure its constitutionality in preference to any construction that would jeopardize it.
These principles surely refute the district court’s construction of the Senate’s power of “advice and consent” as, in effect, a power to appoint its own preference among the three persons nominated by the commission. Being required to adopt the construction that will sustain constitutionality, we should conclude that the Senate’s power is not a power to appoint but only a power to veto. If an appointment is vetoed, the nominating commission must again submit three names, so the Governor can again exercise his statutory power to appoint one *700of three nominees.9 The Senate cannot veto in succession two of the three persons originally nominated by the commission and thus preempt the Governor’s power of appointment.
It is hard to see how the Senate’s veto power can be an effective instrument of control when its exercise is so strictly limited by our Constitution. Article VIII, § 3 binds each department of government to exercise its powers of judicial selection “solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever....” Consequently, unlike appointments made under other legal authority, gubernatorial appointments under Article VIII, § 3 can be vetoed by the Senate only when the appointee can be shown to be unfit for office.10 Like other constitutional limitations regulating the process of selecting judges,11 this restriction is enforceable in the courts. This Court’s decision in Rampton v. Barlow, supra, though not in point in resolving the question posed in this case,12 shows that the courts will provide a remedy where constitutional limitations are exceeded in the appointment process.
In addition to the Senate’s power to veto, each house of the Legislature has the power to designate one commissioner on the seven-member judicial nominating commission. In total, the Legislature designates two of seven, the same number as the Governor. Since these two branches designate the same number of persons on the judicial nominating commission, and the Governor has the power to appoint one of the three nominees while the Senate only has a limited veto power, how can the judicial branch be “controlled” by the Legislature? On the contrary, the balance of power seems to be in the Governor’s favor. In any case, the power of judicial selection is shared sufficiently to protect the judicial branch from control or domination by either of the others.
It is also said that the Legislature’s power to impeach public officers, including judges, “for high crimes, misdemeanors, or malfeasance in office,” Article VI, § 19, and its power, upon a two-thirds vote of both houses, to remove a judge for “cause,” Article VIII, § 11, makes the legislative control even more offensive. But these constitutional provisions do not grant the Legislature carte blanche power to replace judges. The decisions of legislative bodies are final and unreviewable on the questions the Constitution commits to their judgment, but the courts can always review whether they have acted outside their jurisdiction or otherwise in excess of their powers. Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888, 893-94 (1924). Cf. Powell v. McCormack, 395 U.S. 486, 506, 549, 89 S.Ct. 1944, 1956, 1978, 23 L.Ed.2d 491 (1969). This would *701include correction of actions taken without the due process appropriate to the circumstances or without a reasoned finding of the guilt or “cause” required by the Constitution. Consequently, these provisions add relatively little to the Legislature’s quantity of control over the judicial branch.
In view of the intricate system of limitations, checks, and balances involved in the selection of judges, involving the electorate (who vote on appointees at the next general election) and representatives of all three branches of government and the State Bar, the contention that the Legislature’s right to appoint two of seven members of the nominating commission, to veto the Governor’s appointment, and to remove for cause amounts to control or dominance over the judicial branch strikes me as entirely unpersuasive. This kind of shared or balanced power is commonplace in the interaction of the three branches of our government.13 It is entirely consistent with the interdependence of the three branches of government that is an essential complement of the separation of powers. To hold that this limited interdependence violates the separation of powers is to run counter to practical experience with constitutional government and to invite a flood of pointless litigation challenging official acts.
V. THE REQUIREMENTS OF ARTICLE VII, § 10
I am also unable to agree with Justice Stewart’s opinion that the constitutional power to enact laws specifying the manner of selection of judges cannot be exercised to require both Senate confirmation and contested election. My difference with Justice Stewart stems from a difference on the source of executive and legislative power to participate in the selection of judges.
In my opinion, the Governor’s power to appoint and the Senate’s power to confirm judicial appointments are rooted in Article VIII, § 3, which provides that judges shall be selected “in such manner as shall be provided by law.... ” As noted in Parts III and IV, I concede that laws enacted under that section must be consistent with constitutional limitations, including the separation of powers principles in Article V, § 1, but I conclude that the laws providing for judicial nominating commissions, gubernatorial appointment, Senate confirmation, and ensuing election meet that test.
Although Justice Stewart’s opinion cites Article VIII, § 3, I can only interpret its reasoning as a rejection of that section and its implementing legislation as a source of power for executive appointment and Senate confirmation or veto. Thus, he states that the Governor’s power of appointment and the Senate’s power of confirmation are both granted by Article VII, § 10. He also states that both of these powers are subject to the limitations he finds in Article VII, § 10, notably that the law cannot require both Senate confirmation and popular election. Finally, he states that the Senate’s power of confirmation is not a legislative power but “an appointive power,” which cannot be exercised by a legislative body without the specific authorization he finds only in Article VII, § 10. In this context, this contrast between “legislative” and “appointive” powers persuades me that Justice Stewart equates “appointive power” with executive power and impliedly joins the other opinions in concluding that the power to select judges is inherent in the executive branch except as expressly limited by the Constitution. I have four disagreements with the analysis in his opinion.
First, for the reasons detailed in Part III, I reject the idea that the executive under our Constitution has an inherent power to select judges. The power to select judges exists where the Utah Constitution expressly places it: in the authorities designated *702by a law enacted under Article VIII, § 3 (provided the law is constitutional), or, in the absence of such a law, in the authorities the Constitution designates in Article VII, § 10.
Second, I do not accept Justice Stewart’s apparent premise that the terms of Article VII, § 10 limit the power to select judges under legislative enactments pursuant to Article VIII, § 3 or any other constitutional provision. Article VII, § 10 merely specifies a procedure for selecting state officers “whose appointment or election is not otherwise provided for.” It is a backup measure designed to prevent the dilemma of a legally authorized office without a legally prescribed method for filling it. Rampton v. Barlow, 23 Utah 2d at 385, 464 P.2d at 379. Since the “appointment or election” of judges is “otherwise provided for” by Article VIII, § 3 and legislation thereunder, Article VII, § 10 is, by its own terms, inapplicable to this case. If there is no alternate selection mechanism for other state officers, they will be selected under Article VII, § 10, and subject to its limitations, but that is not the case with judges.
Third, I also disagree with Justice Stewart’s interpretation of the terms of Article VII, § 10. The selection mechanism prescribed in the first sentence of that section does not apply as to officers “whose appointment or election is ... otherwise provided for.” The laws challenged here require that district, circuit, and supreme court judges shall be subject to election following their appointment and confirmation. As a result of that requirement, he concludes that Senate confirmation cannot also be required. But why does the fact that judges must stand for election invalidate the Senate’s power to confirm but not the Governor’s power to appoint? The answer lies in the apparent premise that the power to appoint is an executive power, existing independent of its conferral in Article VII, § 10, but subject to regulation by it. Thus, as he says, the references to senatorial consent and election in that section are alternative checks on the appointive power of the Governor. But since the Governor’s power is not dependent on its conferral in Article VII, § 10, the law requiring an election, which renders senatorial confirmation invalid under his view of that section, does not invalidate the Governor’s power. Since I reject the premise, I also reject the conclusion that senatorial consent and popular election are permissible in the alternative but not together.
Fourth, I also disagree with Justice Stewart's conclusion that the issue of the constitutionality of the judicial nominating commission is moot. In his complaint in this case, the Governor seeks a judgment declaring that the statute establishing the composition of the nominating commission is unconstitutional. So long as the Governor has an appointive role in filling judicial offices that may become vacant at any time, his complaint is justiciable under the declaratory judgment statutes, U.C.A., 1953, § 78-33-1 et seq., and cannot be mooted by appointments he has made in the past. This is especially true since the Governor had to make an appointment during the pendency of this litigation in order to preserve his rights under U.C.A., 1953, § 20-1-7.6(3), which specifies that if “the governor fails to appoint one of the three [nominees] within 30 days ... the chief justice of the Supreme Court shall forthwith appoint one of the persons named on the list .... ” Since 30 days is obviously an insufficient period to litigate the controversy, even if this case were technically mooted by an appointment it would nevertheless be justiciable under “well-established rules which permit a court to litigate an issue which ... is of wide concern, affects the public interest, is likely to recur in a similar manner, and, because of the brief time any one person is affected, would otherwise likely escape judicial review [citations omitted].” Wickham v. Fisher, Utah, 629 P.2d 896, 899 (1981).
VI. CONCLUSION
For the reasons set out above, I find no constitutional infirmity in the laws, enacted pursuant to Article VIII, § 3 and consistent with separation of powers principles, which utilize nominating commissions, gubernato*703rial appointment, senatorial confirmation, and popular election in the selection of judges.
I reach my conclusion notwithstanding my skepticism about the desirability of a law requiring Senate confirmation of judicial appointments. Participation in judicial selection by a Legislature that is only occasionally in session may delay the process of filling judicial vacancies and thereby hamper the courts in overcoming current heavy caseloads, even as the supreme and district courts have been hampered by the delays incident to resolving this controversy. But the wisdom or desirability of legislation is a matter for the constitutional lawmakers— the Legislature, subject to executive veto. “It does not lie within the province of the court to pass upon the wisdom, the need or the desirability of any legislation, nor to choose between two opposing political philosophies.” Trade Commission v. Skaggs Drug Center, Inc., 21 Utah 2d at 439, 446 P.2d at 963. The only question before this Court is whether the legislation providing for judicial selection is constitutional. I have no doubt that it is.
. U.S.Const.Art. II, § 2, ¶ 2.
. E.g., Ala.Const.Art. VI, Amend. No. 328, § 6.14; Alaska Const.Art. IV, § 5; Ariz.Const. Art. VI, § 37; Ark.Const.Art. VI, § 23; Cal. Const.Art. VI, § 16; Colo.Const.Art. VI, § 20. Appointment procedures are summarized in Am.Jur.2d Desk Book, Item No. 76 (Supp. 1981).
. R.I.Const.Art. X, § 4; S.C.Const.Art. V, § 3; Va.Const.Art. VI, § 7.
. Vt.Const. Ch. II, § 32; Vt.Stat.Ann. tit. 4, §§ 601, 602.
. The Federalist, No. 47.
. A law giving the Legislature an unshared power to appoint judges would pose very serious questions of constitutionality under Article V, § 1 of the Utah Constitution. But that question is not posed by the facts of this case. See text at note 9, infra.
. Fox v. McDonald, 101 Ala. 51, 13 So. 416, 420-21 (1893); Cox v. State, 72 Ark. 94, 78 S.W. 756, 757 (1904); State ex rel. Craven v. Schorr, 50 Del. 365, 131 A.2d 158, 163 (1957); Leek v. Theis, 217 Kan. 784, 539 P.2d 304, 317-20 (1975); Buchholtz v. Hill, 178 Md. 280, 13 A.2d 348, 350-52 (1940); Thome v. Squier, 264 Mich. 98, 249 N.W. 497, 500, 89 A.L.R. 126 (1933); State ex rel. Standish v. Boucher, 3 N.D. 389, 56 N.W. 142 (1893); State ex rel. Haines v. Rhodes, 168 Ohio St. 165, 151 N.E.2d 716, 719 (1958); Heyward v. Long, 178 S.C. 351, 183 S.E. 145, 156 (1935); Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, 669 (1910); State ex rel. Wayne v. Sims, 141 W.Va. 302, 90 S.E.2d 288, 291 (1955); People ex rel. Warren v. Christian, 58 Wyo. 39, 123 P.2d 368, 371 (1942); 1 Sutherland, Statutes and Statutory Construction § 3.20 (4th ed. D. Sands 1973); 63 Am.Jur.2d, Public Officers and Employees § 91 (1972).
A minority of states hold that the power to appoint government officers is intrinsically, though not necessarily exclusively, executive. Tucker v. State, 218 Ind. 614, 35 N.E.2d 270, 284 (1941); In re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); State ex rel. Johnson v. Myers, 74 N.D. 678, 19 N.W.2d 745 (1945); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963). However, even these states apparently do not consider the power to appoint judges intrinsically executive. See, e.g., Tucker v. State, 35 N.E. at 285.
.The claim that In re Advisory Opinion to the Governor, Fla., 276 So.2d 25 (1973), supports the proposition that the power of judicial appointment is “inherently an executive function” is unfounded. Since Article V, § 11 of the Florida Constitution specifically provides that “[t]he governor shall fill each vacancy in judicial office by appointing ... one of not fewer than three persons nominated by the appropriate judicial nominating commission,” the power of judicial appointment in that state is derived from a specific constitutional grant and is not “inherent” in the sense that it exists independent of such a constitutional provision. (The advisory opinion held that the commissioners themselves, not the governor, had inherent power to promulgate rules governing the operation of constitutionally established judicial nominating commissions.)
. The statute gives the Governor the right to appoint from a list of “three persons named on the list of nominees” received from the judicial nominating commission. U.C.A., 1953, § 20-l-7.6(2) and (3). The clear inference from this provision is that if the Senate rejects an appointment, the judicial nominating commission must submit a new slate of three persons to the Governor. This is the procedure specified in similar circumstances in Montana. Mont.Rev. Codes Ann. § 3-1-1013 (1981); Mont.Const. Art. VII, § 8(1).
. It is difficult to see how the Senate can dominate the judiciary by possessing a veto power efficacious only against unfit appointees. That is surely a feeble dominance, unless one contends that the Governor has a constitutional right to appoint a person who cannot, after being vetoed by the Senate, persuade the courts that he or she is fit for judicial office.
. The lawmaking power delegated under Article VIII, § 3, is limited by express constraints pertaining to judicial selections, including those specifying requirements of age, residency, and membership in the Bar, Article VIII, § 2, and those excluding criteria based on “partisan political considerations,” Article VIII, § 3, or religious tests or property qualifications for public office, Article I, § 4.
. Neither the holding nor the theory of that case has anything to do with judicial selection. The evil proscribed in Barlow was the interference of the legislative branch in the internal operation of the executive branch by appointing subordinate officers of the executive branch and, in effect, controlling part of its operations.
. For example, (1) a statute enacted pursuant to a constitutionally delegated power, Article VI, § 13, gives the Governor the power to appoint a person to fill a vacancy in the Legislature, U.C.A., 1953, § 20-1-5, and (2) the Governor can also veto the actions of the Legislature, Article VII, § 8 (not just appointments to that body). Does this combination of powers, which exceeds by a wide measure those the Legislature exercises in the judicial appointment process, constitute executive “control” of the Legislature?