Report from the House

Rep. David Bedey, R, House District 86, Hamilton

Friction between the three branches of government is a feature baked into our constitutional order by our nation’s Founders. One way this inherent tension has manifested itself here in Montana is in calls by some legislators for the partisan election of judges.

Those favoring this move assert that several rulings made by district courts and by the Montana Supreme Court reveal the courts to in fact be partisan bodies that “legislate from the bench,” thus encroaching on the Legislature’s constitutional prerogatives. They argue that going to partisan judicial elections would simply acknowledge what is already the case and will allow voters to make better informed decisions. They expect that Montana’s increasingly right-leaning electorate will choose “originalist” judges who reject the notion of a “living constitution” and take a more restrained view of a judge’s role.

Those opposing partisan judicial elections reject the contention that the courts are partisan and argue that partisan judicial elections are at odds with the Founders vision of an independent judiciary. Some also take the view that the judiciary is a proper venue for achieving policy objectives. As advocates of “judicial pragmatism,” they see the constitution as a living document that requires judges to take an active role in reinterpreting the constitution to fit present circumstances.  

Both of these two camps are preoccupied with the results of specific court decisions. Both seek to advance one of two competing general judicial philosophies, on one hand “originalism” and on the other “pragmatism.” Both have a political interest in the outcome of this debate. And both are missing the point.  It is the process, not the outcomes, that is at the heart of this matter.

The critical question is: How can we make reasoned decisions concerning the temperament, impartiality, and judicial philosophy of judicial candidates? The Founders’ solution was to select judges through a process of presidential nomination and Senate confirmation. This provides for public vetting of prospective judges. But in Montana, our constitution requires that judges be elected. Although Montanans treasure their right to vote for judges, it is well known that most of us, especially regarding Supreme Court elections, know very little about judicial candidates and what we do know comes from manipulative advertising by well-financed special interests. So what is the solution to this problem?

I believe the best approach would be to emulate the nomination and confirmation process used at the federal level. But the likelihood of changing the Montana Constitution to that effect is practically nil.  Alternatively, partisan judicial elections would provide voters some information on a candidate’s judicial philosophy. But the problem I see with this approach is that both political parties are increasingly controlled by their activist fringes. In the GOP, this has resulted in calls for candidates to swear allegiance to the party platform and to treat the platform as “our Bible.” I suspect that Democrat party bosses have similar expectations. Demanding that judicial candidates toe the party line is antithetical to the hope of achieving an impartial judiciary that can command the respect of all Montanans.

So where does that leave me as a legislator? For reasons given above, I am wary of partisan judicial elections. Therefore, I will not support partisan elections for justices of the peace or district court judges because I believe that the jurisdictions in question are small enough for voters to inform themselves about the candidates. Being that its elections are statewide, the Supreme Court poses a thornier problem. Because judicial philosophy is at least roughly aligned with party affiliation, I am inclined to support allowing (but not requiring) a candidate to declare party affiliation. But I will oppose attempts to move away from an open primary for Supreme Court elections. This moderate—dare I say conservative—approach would provide voters a bit more information on Supreme Court candidates while limiting the influence of partisan politics on Montana’s judiciary. I’m not entirely happy with where my reasoning has led me, but I believe it represents a reasonable compromise.