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Gianforte, Republicans seek more influence over judicial choices

GOP also has bills to make judicial races partisan
Montana Supreme Court
Posted at 4:50 PM, Feb 10, 2021
and last updated 2021-02-11 09:50:52-05

HELENA — Montana Republicans, who control the governor’s office and the Legislature, are now pushing bills to give the GOP and conservatives more influence over choosing the state’s judiciary.

Gov. Greg Gianforte, Montana’s first Republican governor in 16 years, is behind a bill to allow him to appoint whoever he wants to fill vacancies on the Supreme Court or state district courts – instead of having to choose from a list of nominees submitted by an independent commission.

His lieutenant governor, Kristen Juras, testified for Senate Bill 140 Tuesday and said it’s time to get rid of the commission and let the governor appoint judges from a list of whoever applies.

“In filling judicial vacancies, Gov. Gianforte is committed to appointing well-qualified judges who will protect the rights of Montanans, granted by the constitution, and who will apply the laws adopted by this body as they are written,” she told the Senate Judiciary Committee.

She also said Gianforte-appointed judges would be “familiar with legal issues faced by our farmers, ranchers, loggers, miners, entrepreneurs and business owners.”

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Lt. Gov. Kristen Juras.

And on Wednesday, Rep. Barry Usher, R-Billings, presented his bill that would ask Montana voters, in the 2022 election, to decide a referendum that says Supreme Court justices will be elected by district, rather than statewide.

Usher said if the seven justices are chosen by district, they would better-represent the “diversity” of different areas of the state.

“I think it would help our Supreme Court get a little more in line with our electorate,” he told the House Judiciary Committee.

Of the seven districts outlined in the bill, at least four likely would be dominated by Republican-leaning voters.

Opponents of both bills said the measures may be unconstitutional – particularly Usher’s House Bill 325.

Bruce Spencer, representing the State Bar of Montana, said the state Supreme Court struck down a similar proposal just eight years ago and that the same legal arguments apply today.

Usher said voters should still have the opportunity to decide whether they want Supreme Court justices elected by district, and that the courts could rule against it if they want.

Republican lawmakers also have introduced bills that would make Supreme Court and District Court judicial races in Montana partisan, with candidates running as Republicans or Democrats.

In Montana, all judges are elected, on a nonpartisan basis. But if a state District Court or Supreme Court judge leaves his or her post in mid-term, the governor appoints a replacement. The appointee then must run in the next election.

Since 1973, the governor’s appointees must come from among three to five nominees chosen by the Judicial Nomination Commission, a seven-member group that reviews and interviews applicants for the post.

District Judge John Brown of Bozeman, who opposed SB140 on Tuesday, said the current process is open to the public, works well and is not partisan.

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State District Judge John Brown of Bozeman.

“Truly, we try to find the best possible candidates who will make the best possible judges,” he said. “We are independent. We don’t ask questions about whether our applicants are Republicans or Democrats. We don’t care. We want the best possible judges.”

Juras, however, maintained that the current process is political, because four members are appointed by the governor and two are appointed by the Supreme Court.

She said in the past 20 years, members of the commission made 334 contributions to political candidates – and only three of those went to Republicans.

“Let’s get rid of the fiction that this is somehow a nonpartisan process,” Juras said. “It is not. … Quite frankly, when Republican governors appoint the members, they tend to be Republicans.”

It makes more sense to have the governor choose from a list of applicants, without the Nomination Commission acting as middleman, she said.

Under SB140, anyone could apply for a vacant judgeship and the governor would decide who to appoint. The bill also allows for public submission of applicants and comment on the applicants.

Juras noted that the state Senate still must confirm any judicial nominees and that they would still have to stand for re-election in the next election, just as they do now.

The State Bar of Montana, the Montana Judges Association and several judges, lawyer groups and former judges spoke against SB140. A former federal judge, former Republican state senator, free-market group and the Montana Stock Growers Association supported it.

No one spoke in favor of Usher’s bill. Both bills remain in committee.