Resist GOP attacks on courts and constitution
The legislative GOP misleadingly calls the 27 draft bills they passed through their partisan judiciary attack committee “judicial reform.” The news media has echoed that term in their reporting. That’s sad, because saying “reform” implies that the bills will make our judiciary better. Rather, the bills are a partisan attack designed to weaken the judiciary -- make it more partisan, less independent and substantially subservient to the GOP legislative majority.
Montana’s government and Constitution are based on our Founding Fathers’ belief in the structure of Madisonian Democracy - three separate and co-equal branches of government, including a substantially independent judiciary. A balance between these co-equal branches is necessary for government to be both productive and fair.
Yes, hard as it is to believe, the GOP wants more partisanship in the operations of our courts – imposing political partisanship on the branch of our government which has been served well by non-partisan elections for the last ninety years. In Montana, if you go to court, you enter a process based upon facts and the law, not your partisan political beliefs. There is comfort for citizens in that, comfort which apparently makes today’s legislative extreme GOP uncomfortable – something they are trying to change.
Montanans need protection from that extremist perspective. What we really need is legislative passage of a constitutional referendum to constitutionally guarantee non-partisan elections for Montana judges at all levels. Let voters decide with constitutional language whether Montana’s judges and judicial system ought to be dictated by partisan politics or not. Are extremist Republicans afraid to let the voters decide that? They ought to be, for voters will not favor more partisan politics in their courts.
If the Legislature endangers our system of justice, we may have to protect ourselves.
“We the people” can do that with our constitution’s initiative process. It allows the voters to put non-partisan election of judges directly into the constitution by petition and a vote of the people. No legislation required.
And while we are at it, we also ought to restore the Judicial Nominations Commission - the open, balanced and non-partisan public process for appointment of judges when temporarily filling judicial vacancies. The Legislature abolished the commission in 2021 after it had been used consistently and satisfactorily for 48 years by both Democratic and Republican governors.
The Nominations Commission assured legal competence, experience and judicial disposition, in addition to nonpartisanship in any appointed judiciary. Nonetheless, it was abolished by Republicans in 2021 solely because the legislative GOP had the power to do so. They put the nominations power fully in the hands of the governor, whichever party he or she might be. That open and balanced public process needs to be restored.
Again, if the Legislature refuses, it may well be time again for “we the people” to spring into action and put, by initiative, the Judicial Nominations Commission and its processes into Montana’s Constitution.
There are many more extreme ideas harmful to the judicial system coming out of the GOP partisan committee whose ultimate objective was making our courts bend to the will of the legislative branch rather than being a Constitutionally separate and co-equal branch of the government, protected from the excesses of partisan politics. Those bills should mostly be rejected, as well.
Our constitution comes from the people and the constitutional initiative process gives exclusive power to “we the people” to directly bring changes to our Montana Constitution. To protect our courts and ourselves from excessive legislative partisanship, we may have to use it.
Evan Barrett lives in Butte. He worked in Montana economic development, government, politics and education for 47 years, and produces Montana history videos.