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Montana governor fights to reform ‘broken’ judicial appointment process

Montana Gov. Greg Gianforte, the first Republican to hold the seat in 16 years, doesn’t 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 years and district judges serve six years – and incumbents typically win. But in the event of a vacancy, the governor has the power to appoint a person to fill the remainder of the term, after being confirmed by the state Senate. Now Gianforte and the state’s Republicans want to fix what they believe is a “rigged” system of filling court vacations. Last month, Gianforte signed Senate Bill 140, ending the current “Judicial Nominations Commission,” which, since 1973, has had the exclusive power to recommend a slate of candidates for a vacant governorship. “In practice, it was filled with trial lawyers,” Gianforte said of the commission. “The governor could only appoint interim judges from a list which in practice had only three names, and they trained only liberal trial lawyers. So we worked with the legislature to put in place a fair process that is actually the way we appoint judges at the federal level to the Supreme Court. The Montana Trial Lawyers Association and the Montana Defense Trial Lawyers Association oppose the dissolution of the commission, which is composed of seven members for a four-year term: four lay members, appointed by the governor; two lawyers chosen by the State Supreme Court and a district judge chosen from among his peers. Critics of SB 140 have called Gianforte’s decision controversial for removing “non-partisan” control over the governor’s authority. But according to Lieutenant Governor Kristan Juras, the commission clearly has a partisan bent. “When I gave my testimony before the Senate Judiciary Committee, I pointed out that the current seven members of the Commission had made political donations over the past 20 years – less than 1% of their contributions were intended for Republican candidates, ”she explained. “They hide behind this ‘non-partisan’ fiction, when in fact they are very partisan, when in fact they fail to reach Governor the kind of people that Governor Gianforte is interested in.” SB 140’s statute is currently in limbo after critics filed a lawsuit with the Montana Supreme Court alleging it violates the state’s constitution. But the court may have a conflict of interest: Emails obtained by the Montana attorney general’s office show the state Supreme Court administrator asked all state Supreme Court justices and district judges to take position on SB 140 in January. Chief Justice Mike McGrath, who had previously recused himself from the case after saying he had personally pressured Gianforte to oppose it, chose District Judge Kurt Krueger as his replacement. But Krueger said earlier this month he would recuse himself as well, after emails showed he “categorically opposes” the law. Although the state legislature has now subpoenaed the Supreme Court for more documents, so far the remaining six justices have refused to recuse themselves, saying they had not been questioned. The court also sided with Beth McLaughlin, the court administrator, after appealing to block the publication of her emails – although she admitted she deleted poll results judicial review on SB 140 and other pending laws, which have been released by the state. organization of judicial lobbying. “The behavior we have seen recently from the Supreme Court here, with its emails, its biases on legislation and its open communication, shows how flawed the current system is and that is why we need to have a more objective process of selection of judges. Said Gianforte. Juras, a transactional lawyer by profession, says the “unconstitutional” claim falls short of the wording of the 1972 State Constitution, which states that, in the event of a judicial recess, “the governor will appoint a replacement from among the candidates selected in the manner provided by law. “” It is very clear from the comments of the delegates to this convention, that they did not – they could have, but they chose not to – put in the Constitution a judicial appointment commission. They left it to the legislature to determine exactly how the governor would make those appointments, ”Juras explained. Since its initial formulation in 1973, Juras has said that the commission has been “amended many times since” because “the legislature has constantly tried to modify it”. In its current form, she explained, the nature of the closed circle inherently limits the pool of candidates. “Most transactional lawyers would say we don’t have a chance to go through the judicial appointments commission, why even apply?” she says. “Some very qualified candidates, including an experienced defense attorney from Billings Montana who served on the Board of Regents, highly respected, she failed to go through the judicial appointments commission process.” Gianforte says the Montana court record shows the current process isn’t working – he points to last year’s U.S. Supreme Court decision to overturn the Montana Supreme Court in the Espinoza case, which declared the Blaine amendments unconstitutional, as an example. “We don’t want a conservative court. We do not want a liberal tribunal. We want a court that will rule on the law, not who will, ”he said. “And the current system we have in place doesn’t make that possible.”



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