Montana Moves To Break What Already Runs Well

By Darrell Ehrlick, Daily Montanan

February 18, 2021

Quick: Who thinks we need more politics in government — show of hands, please?

Well, at least one group I suspect may have their hands reaching skyward is the Republicans of the Montana Legislature, who believe most Montanans haven’t gotten their fill of politics and seek to make something decidedly, expressly and intentionally nonpartisan, partisan.

In these past four-plus years, we’ve seen the judiciary at all levels — state, local, and federal — become the bulwark of our democracy, not allowing hyperpartisan politics to poison or destroy our republican institutions. Nowhere was this more evident than as former President Donald J. Trump and his allies, including Montana’s own Sen. Steve Daines, tried to overturn the election results without any credible evidence. As Trump and his team of bumbling, leaking lawyers were handed defeat in so many states, Americans got a front-row seat witnessing the awesome power the courts have at rebuffing our worst partisan instincts. Many of those judges who dispatched those odd lawsuits were appointed and confirmed by the same Republicans who were convinced that a judge’s loyalty to a party would outweigh their own lifelong dedication to the law.

Not so.

Yet, in those uncertain moments after the election but before the inauguration, most Americans held their breath, hoping that the institution of the courts that so many of us take for granted would rise to the occasion and save us from our worst selves.

They did.

That’s why two movements to radically reshape the state’s judiciary deserve quick condemnation. Of all the bills that seem to be solutions in search of problems, these bills are by far the worst because they not only aim to fix what’s not broken, but almost assuredly break what works well.

One bill would take appointing judges out of the hands of an independent and impartial judicial nomination committee and place it in the hands of the governor, clearly a partisan maneuver. The second bill, even more pernicious, would require judges to register their party affiliation, thereby obliterating any appearance of impartiality.

Regardless of conservative or liberal beliefs, ask most people what’s wrong with the state or country and they’ll likely give you some version of, “politics.” So it seems like the only thing we should be able to agree upon is the notion that adding more opportunities for partisanship is bad.

Not so with our Republican friends in Helena.

The tortuous logic that they are employing goes something like this: Judges are humans and humans have feelings. True, so far. However, Republicans, who appear at times unfamiliar with any sense of duty greater than their own party, imagine that no other human being could care less about politics and be able to impartially decide an issue. They reason that because there is no completely impartial person – no tabula rasa – that everyone who dons a black robe, has a gavel and sits on a bench is really just a closeted politician. Therefore, let’s force them into a political process and make them affiliate with parties so that voters will really know who they’re voting for (wink, wink, code, code).

Sen. Steve Hinebauch, R-Wibaux, even went as far as to try to convince his fellow lawmakers that people are always bending his ear about how to fix partisan judges.

Even assuming that is true, most of the time when folks talk about judges, they often refer to federal judges. Most do not understand that the process for hiring judges can vary by municipality, state or the federal level. The federal judicial appointment process has been decidedly a morass of the worst kind of politics. Benches remained empty while the U.S. Senate refused to hear nominees during the presidency of Barack Obama, only to rush through judges appointed by Donald Trump at the last moment. I don’t think Montana’s already overburdened court system can wait years for the political process to play out in Helena just to get judges on the bench.

Lawmakers, apparently impervious to experts or lawyers, don’t seem too intent on listening to judges, attorneys, or the bar association, which has testified against these measures. Yellowstone County Judge Gregory Todd told the Billings Gazette that only one judge in the entire state even supported these changes.

Can you imagine what happens the first time a judge has to rule against his or her patron governor? Or have to decide a political practices lawsuit against your own party?

Me neither.

The Founding Fathers and Mothers of our state’s 1972 constitution created the system with intentionality and design. Nearly a century of strongarm politics, funded by ruthless mining companies and magnates, had left the state irrevocably broken. They recognized the judiciary’s complicity as it was bought, bribed and hectored into submission. So those same founders set safeguards — some constitutional — to insulate the system from exactly the kind of brazen political power grab being exercised by Republicans and the governor.

As a former courts reporter who has spent hundreds, if not thousands, of hours in a courtroom, I am constantly impressed by the fair-minded and thoughtful judges. That has been true as I have traveled throughout the state. I have also been nonplussed by the number of spectators who were shocked to learn the court is nothing like those portrayed on television or movies (not so unlike the shock of tour groups not seeing typewriters or hearing clanging phones in a newsroom). Courts are not so glamorous and so much more thoughtful than they had imagined.

What happens in the court is the absence of politics. There are no Democrat judges or Republican magistrates when it comes to dealing with child abuse. Or adoptions. Or even bail hearings. Those terribly consequential points in life are beyond politics, which suggests that many of our lawmakers haven’t sat in a courtroom long enough to understand the nearly instantly notable lack of politics.

The problem, according to Hinebauch and the Republicans who have joined him, is that they mistakenly believe the system is already too political without any evidence.

Their solution? Just add more politics.

It’s like putting out a person on fire with gasoline, or tossing a drowning person a bucket of water.

If the problem is politics, the solution can’t possibly be more of it.

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