Opinion: Concerns about judicial bills

The three of us have known each other dating back a half century when Dorothy Bradley and Bob Brown were young legislators and Marc Racicot was emerging as a top prosecuting attorney. Over the decades we have been fierce competitors as well as staunch allies in the rough and tumble arena of Montana politics. We have maintained our friendship and appreciated our varying commitments, which was once a worthy Montana tradition.

Now we are brought together by a common cause so compelling that we are speaking out together. Our concern regards legislation in Helena that, if passed into law, would be immediately and deeply destructive of Montana’s judicial system.

As if we don’t have too much political partisanship already, House Bill 355 would turn our state Supreme Court into a partisan political body in which court candidates would be elected as Democrats and Republicans. Clearly, Justices of the Supreme Court should not be influenced by political party platforms and gambits in arriving at impartial interpretations of our state laws and constitution.

House Bill 325 is equally misdirected and proposes that Supreme Court candidates represent districts. Shielding Supreme Court Justices from local political pressures is as essential as protecting them from partisan politics. We don’t want a “Missoula” justice, or a “Bozeman” and “Great Falls” justice, any more than we want our candidates lining up for partisan endorsements and contributions.

Senate Bill 140 is the third and most duplicitous of the package. It should be made clear that this measure deals with vacancies, and not standard judicial elections. If enacted, it would abolish the Montana Judicial Nomination Commission, leaving appointments for District Court and Supreme Court vacancies solely in the hands of one person – the Governor – who could appoint any lawyer with zero regard for his or her qualifications, experience, integrity, record, or judicial disposition.

Two of us had the unique experience of serving in the House of Representatives before and after the 1972 Constitutional Convention. We not only witnessed its scrupulously nonpartisan crafting (from which we could all learn today), but were also the beneficiaries of its far-reaching vision. Article VII, The Judiciary, was one of the most thoroughly researched and intensely debated provisions. Historically, judicial appointments were not only controversial but the source of some hilarity throughout Montana’s tempestuous history of Copper Kings. The balancing act of the 1972 delegates involved assuring a process to bring forward qualified and honorable candidates while involving but limiting an unfettered executive.

So the delegates allowed for the creation of an independent Judicial Nomination Commission made up of lawyers, judges and members of the public (selected by governors), with staggered terms of service, to review the qualifications of judicial applicants and make nominations to the Governor for appointment. The Governor makes the judicial appointments, but is limited to the recommendations of the Judicial Nomination Commission.

This system has been in effect since the 1973 session of the legislature, when young State Representatives Dorothy Bradley and Bob Brown supported Senate Bill 28 which created the Judicial Nomination Commission. It has stood the test of time such that not even an interim study has been warranted all these years to examine any shortcomings.

Twenty years later, Gov. Marc Racicot was directly involved with the Nomination Commission in his judicial appointments. His unequivocal view is that our presently existing judicial selection process in Montana provides the most assurance possible that those candidates most qualified by reason of judicial temperament, diligence and ethical conduct will be appointed by the governor to judicial office.    

Thirty-four states now have a merit review process similar to Montana’s Judicial Nomination Commission which S.B. 140 would abruptly eliminate. To do so would be a big step backward for Montana. It would result in more power than a good Governor would want or a bad one should have.

Marc Racicot is a former Montana Republican Attorney General and Governor. Democrat Dorothy Bradley and Republican Bob Brown were both long time state legislators, and both were candidates for governor.