Because a Montana Supreme Court justice, Brian Morris, was confirmed on Thursday by the Senate for a federal district court judgeship, a merit selection process used to fill judicial vacancies will be geared up to help pick his successor on the state’s highest court.
An explanatory article in the Missoulian described the procedures to be used in filling both the vacancy created by Morris’ getting a federal district judgeship and also state District Judge Susan Watters’ winning confirmation for a federal district judgeship (see Gavel Grab).
The Judicial Nominating Commission recommends three to five candidates, and the governor picks one of them to fill a vacancy. The governor’s appointment is subject to Montana Senate confirmation.
Montana Supreme Court Justice Laurie McKinnon (photo) took the oath of office on Monday, marking the first time in state history that three women have sat on the bench. McKinnon will join fellow Justices Beth Baker and Patricia Cotter, according to KPAX News.
McKinnon defeated Ed Sheehy for the seat in November, and will be taking the place of retired Justice James Nelson. She previously served as a District Court Judge, and was an attorney for 20 years.
“I can’t promise I’ll issue decisions that everybody will be happy with, but I will issue decisions that are based on reverent study of the law, and I will consider every argument presented to be fair and impartial,” McKinnon said during the ceremony.
Montana District Judge Laurie McKinnon, who recently emerged from a primary contest as one of two general election candidates for the state Supreme Court, enjoyed major financial support from an independent group that supported her with mailers.
As of mid-May, the Montana Growth Network spent $41,865 on mailers supporting Judge McKinnon in a June primary, according to a Helena Independent Record article. That amount surpassed the $36,834 that the candidate had raised herself through May 16.
The Montana Growth Network was founded by Jason Priest, now a state senator. He was described in Slate last year as “a Republican who ran on a tea party platform.” In 2010, Priest made news in the Billings Gazette after referring on Facebook to the economist John Maynard Keynes as “a big homo.” Priest also accused President Obama of “giving America … the dry thumb.”
Priest, who serves as treasurer for Montana Growth Network, said he would disclose its donors only when he was required to do so, the recent Helena Independent article said.
The Supreme Court has affirmed its controversial Citizens United decision, striking down a Montana law that barred indirect corporate expenditures on all state elections. By a 5-4 vote, the justices summarily reversed a ruling by the Montana Supreme Court, according to an Associated Press report.
In an unsigned decision, the five-member Supreme Court majority chose not to address questions about Citizens United raised by the Montana court, instead saying only that it violated the 2010 campaign finance ruling:
“The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. … Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”
Justice Stephen Breyer wrote a dissent that reiterated the four-member minority’s disagreement with the initial Citizens United ruling and also its application in the Montana case.
“Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so,” he wrote.
Montana’s Supreme Court had found the anti-corruption law constitutional, but the U.S. Supreme Court temporarily blocked enforcement of that Montana ruling, and Montana sought an appeal.
Twenty-two states and the District of Columbia have sided with Montana in its effort to prevent use of the Supreme Court’s Citizens United decision to invalidate state laws that restrict corporate spending on political campaigns.
A TIME blog post about the case, centering on a century-old Montana anti-corruption statute, explains why it’s in the public eye this election year:
“Trumpeted by liberals and advocates of stricter campaign-finance regulations, the matter has mushroomed into ‘perhaps the most serious challenge to date to the Citizens United decision,’ wrote the Nation‘s Katrina vanden Heuvel.”
But the court’s membership hasn’t changed since Citizens United was decided, and few expect the justices to reverse course. “While the Justices could issue a narrowly tailored ruling, they could also further cement the established precedent,” Alex Altman writes at the Swampland blog.
In front of the Supreme Court, Common Cause and other campaign finance reform groups held a rally on Thursday in hopes the court will use a Montana case to reverse its landmark Citizens United decision.
“It’s a safe bet that a ruling by the Montana Supreme Court has rarely if ever triggered a demonstration in the nation’s capital,” Tony Mauro wrote at the Blog of Legal Times. At Thursday’s event, protestors carried signs reading, ”Citizens United: Worse than Dred Scott,” and “Stand with Montana.”
Common Cause president Bob Edgar told about 100 demonstrators that “billionaire political investors” have taken over the political system thanks to the Citizens United, the ruling that permitted unlimited corporate and labor union spending on elections. Gavel Grab has written about the Montana case, involving a state anticorruption campaign finance law, and requests to the nation’s highest court to review the law’s constitutionality.
Edgar took sides with Justices Ruth Bader Ginsburg and Stephen Breyer. Last week, they suggested the high court use the Montana case as a vehicle to reconsider Citizens United. The Montana Supreme Court restored a ban on direct corporate spending on candidates and committees, and challengers of the ruling are seeking an appeal to the nation’s highest court.
An editorial in the Billings (Mt.) Gazette, meanwhile, said “[W]e agree” with Justices Ginsburg and Breyer.
2/11/08: Montana Updates; Judge Says Courts Can Try Suspected Terrorists; And a Blog Post Discussing The Legitimacy of a Nebraska Supreme Court Decision
Moussaoui Judge Defends Courts Ability to Handle Terror Trials- ACS Blog
U.S. District Judge Leonie Brinkema defends the trial courts ability to handle terrorism trials.
Constitutionally Correct Or Judicial Activism- Rhymes With Right
This blog post discusses the legitimacy of the Nebraska Supreme Court’s decision to end electrocution executions.
More on Judicial Elections in Montana- Montana Street Blog
A blog post highlighting two weekend articles on Judicial elections in Montana.
Rep. Tom Lantos passes away- Think Progress
And of note outside of Justice at Stake issues, Congressman Tom Lantos, of California, passed away this morning after just informing the nation that he had cancer last month. He was 80.
A Montana judge, whose light sentence for the convicted rapist of a 14-year-old girl sparked outrage, could face punishment ranging from censure to ouster, according to a Reuters report.
District Judge G. Todd Baugh was found guilty of judicial misconduct by the Montana Judicial Standards Commission, which noted that the judge ”justified the unlawful sentence by blaming the child victim.” In 2013, the judge sentenced a former high school teacher to just 30 days in prison for raping the teenager, whom Baugh described as “older than her chronological age” (see Gavel Grab). The victim later took her own life.
The Judicial Standards Commission now must decide whether to discipline Baugh itself or turn the case over to the state Supreme Court to decide punitive action. The commission noted in a complaint filed with the court that Baugh had undermined public confidence in the judiciary. Baugh has already said he will not run for reelection.
The Judicial Nomination Commission has invited applications from attorneys interested in succeeding former Montana Supreme Court Justice Brian Morris, who recently was confirmed to the federal bench.
The application period closes Feb. 12, and after that, the public will have 30 days to comment on the applicants. Then the screening commission must make recommendations in a month to Gov. Steve Bullock for appointment, according to the Associated Press. The panel recommends three to five candidates.
Meanwhile a different Associated Press article reported that state Supreme Court Justice Brian Rice, filing to seek a third eight-year term, voiced his support for choosing judges by elections and said they make judges accountable.
When retired U.S. Supreme Court Justice Sandra Day O’Connor visited the state in 2010, she advocated for switching to an appointive system for selecting judges and said an initial judicial appointment would be followed by a retention (yes-or-no) election in that system, thereby assuring accountability. Last year Justice O’Connor joined Justice at Stake as its First Honorary Chair.
The appointive process to fill ex-Justice Morris’ seat is one that Montana uses for filling unexpired judicial terms.
A Billings Gazette editorial, reflecting on obstructionist politics that have delayed confirmation of two non-controversial judges for the federal trial bench in Montana, expresses hope that a recent U.S. Senate rules change will lead to confirmation of the pair.
Two of Montana’s three federal trial court seats are vacant, and they are deemed “judicial emergencies,” the editorial says, adding, “With too few judges, justice is delayed. Justice delayed is justice denied.”
The nominees are Yellowstone County District Court Judge Susan Watters and Montana Supreme Court Justice Brian Morris. ”It is time for the Senate to do its job: Allow the president to fulfill his constitutional duty to appoint U.S. judges so the judicial branch can do its job,” the editorial adds.