Wednesday, February 08, 2023

Supreme Court: Mack truck v. motor scooter

by Bob Brown
| September 22, 2022 12:00 AM

Judicial independence is a matter of Constitutional law and American tradition. By the strict design of our founders, our separate court system has been independent of party politics, and therefore not guided by party platforms and party leaders as are the other two branches of our government.

In 1938, President Franklin D. Roosevelt tested that separation. Frustrated by the US Supreme Court’s resistance to his New Deal programs, FDR backed legislation to essentially expand the court from 9 to 15 members. With his overwhelming Democratic majorities in Congress, Roosevelt thought that for political purposes, he could easily take over the court, thus giving the executive and legislative branches controlling power over the constitutionally independent Supreme Court.

Congressional leader of the opposition to the “court-packing plan” was Montana’s highly influential Senator Burton K. Wheeler. A Democrat and “new dealer” himself, Wheeler was shocked by what he saw as an outrageous political power play.

Wheeler recognized that many in his party agreed with him that the court bill was a direct danger to our system of democracy, but they were afraid to defy the popular will of their President. Against the odds, and through a skillful appeal to senators’ consciences, Wheeler killed the court bill. It was FDR’s first major defeat. The Saturday Evening Post at the time lauded the Montana Senator’s talent as a coalition builder, and referred to him as the “President-Tamer.”

Wheeler told me in a conversation with him late in his life, that in his opinion the safeguarding of the independence of the US Supreme Court was by far his most important achievement in 24 years as a United States Senator.

Wheeler would indeed be shocked and saddened today to see the dominant political party in his home state, in firm political control of Montana’s executive and legislative branches, flagrantly engaged in a political strategy to expand its influence over the Montana Supreme Court.

This year, the Montana Republican Party has openly and actively thrust itself into a nonpartisan judicial campaign. They have repeatedly paid for mailers in outright partisan support of James Brown’s Supreme Court candidacy.

Beyond his political connections, Brown’s career has been mostly as a lobbyist. He actually appears to have been counsel of record in something less than 100 Montana court cases.

In vivid contrast, Brown’s opponent, Montana Supreme Court Associate Justice Ingrid Gustafson, gained valuable experience as a full time practicing lawyer in a widely varied practice for nearly sixteen years. Her record for diligence and dedication was brought to the attention of Republican Governor Judy Martz, who appointed her District Judge in the Billings district. (At that time, Brown had not even completed law school.) A recognized hard-worker, Gustafson went on to preside over nearly 15,000 cases as the people of Yellowstone County repeatedly reelected her district judge. Democratic Governor Steve Bullock recognized her ability, and appointed her to the Montana Supreme Court to which the people of Montana have since elected her. She has directly participated in about 1100 opinions in her service on the Supreme Court.

Straight-arrow, non-partisan, hard-working Justice Ingrid Gustafson is experienced and qualified in all aspects of the legal profession. She is a totally impartial, fair, dedicated, and deeply qualified public servant. Comparing her record of public service and achievement to her opponent’s is like comparing a Mack truck to a motor scooter.

Though no longer a public official, I have a career extending back for decades observing public office holders and evaluating their performances. Gustafson over Brown is as easy and obvious a choice as I can remember.

Bob Brown is a former Republican Montana Secretary of State and State Senate President. He lives in Whitefish.

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