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Montana Governor Greg Gianforte, the first Republican to hold the seat in 16 years, does not want to miss a rare opportunity to reform his state’s judicial process.
In Montana, judges are chosen by voters — Supreme Court justices serve eight-year terms, and district judges serve six-year terms — and incumbents usually win. But in the case of a vacancy, the governor has the power to appoint someone to serve out the remainder of the term, after they are confirmed by the state Senate.
Now, Gianforte and state Republicans want to fix what they think is a “rigged” system of filling judicial vacancies. Last month, Gianforte signed Senate Bill 140 into law, ending the current “Judicial Nominating Commission,” which since 1973 has had the sole power to recommend a list of vacancy candidates to the governor.
“In practice, it was stacked with trial lawyers,” Gianforte said of the commission. “The governor could only appoint interim judges from a list that, in practice, was just three names, and they only produced liberal trial lawyers. So we worked with the legislature to put a fair process in that actually matches the way we appoint judges at the federal level for the Supreme Court.”
Both the Montana Trial Lawyers Association and the Montana Defense Trial Lawyers Association oppose the disbandment of the commission, which is made up of seven members who serve four-year terms: four lay members, appointed by the governor; two attorneys chosen by the state Supreme Court, and one district judge selected from among his peers.
Critics of SB 140 have called Gianforte’s move controversial for removing a “nonpartisan” check on the governor’s authority. But according to Lieutenant Governor Kristan Juras, the commission has a clear partisan bent.
“When I gave my testimony to the Senate Judiciary Committee, I pointed out that the current seven members of the Commission have made political donations over the past 20 years — less than one percent of their contributions were to Republican candidates,” she explained. “They hide behind this ‘nonpartisan’ fiction, when in fact they’re very partisan, when in fact they do not get to the governor the sorts of people that Governor Gianforte is interested in.”
SB 140’s status is currently in limbo after critics filed a lawsuit with the Montana Supreme Court on the grounds that it violates the state constitution. But the court may have a conflict of interest:emails obtained by the Montana Attorney General’s office show that the state Supreme Court administrator petitioned all state Supreme Court justices and district judges to take a position on SB 140 back in January.
Chief Justice Mike McGrath, who had already recused himself from the case after saying he personally lobbied Gianforte to oppose it, chose District Judge Kurt Krueger as his replacement. But Krueger said earlier this month that he would also recuse himself, after the emails showed he “adamantly opposes” the law.
Though the state legislature has now subpoenaed the Supreme Court for more records, so far the remaining six justices have refused to recuse themselves, saying they were not polled. The court also sided with Beth McLaughlin, the court administrator, after she appealed to block the release of her emails — though she admitted that she had deleted the results of a judicial poll on SB 140 and other pending legislation, which was circulated by the state’s judicial lobbying organization.
“The behavior we’ve seen out of the Supreme Court here recently, with their emails, and prejudging legislation, and open communication, just shows how broken the current system is and this is why we need to have a more objective process for selecting judges,” Gianforte said.
Juras, a transactional attorney by profession, says that the “unconstitutional” claim falls flat when compared with language of the 1972 state Constitution, which states that, in the case of judicial vacancies, “the governor shall appoint a replacement from nominees selected in the manner provided by law.”
“It’s very clear from the comments of the delegates to that convention, they did not — they could have, but they chose not to — put into the Constitution a judicial nomination commission. They left it to the legislature to determine how exactly the governor would make these appointments,” Juras explained.
Since its initial formulation in 1973, Juras said the commission has been “amended numerous times since then,” as “the legislature has constantly tried to tweak it.” In its current form, she explained, the closed-circle nature inherently limits the pool of candidates.
“Most transactional attorneys would say, we didn’t stand a chance of getting through the Judicial Nomination commission, why even apply?” she stated. “Some very highly qualified candidates, including an experienced defense attorney out of Billings Montana who served on the Board of Regents, highly respected, she didn’t make it through the Judicial Nomination commission process.”
Gianforte says the track record of Montana’s courts shows that the current process is not working — he points to the decision last year by the U.S. Supreme Court to overrule the Montana’s Supreme Court in the Espinoza case, which declared Blaine Amendments unconstitutional, as one example.
“We don’t want a conservative court. We don’t want a liberal court. We want a court that’s going to opine on the law, not make law,” he stated. “And the current system we have in place does not make that possible.”