(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
The politics and philosophy behind the race for chief justice of the Montana Supreme Court [1]
['Arren Kimbel-Sannit', 'More Arren Kimbel-Sannit']
Date: 2023-12-14
Montana’s Supreme Court elections are officially non-partisan affairs. But with two open seats, a slate full of candidates and intense political scrutiny of the high court in the rear window, the judicial politics of the 2024 cycle are already taking shape.
In November, Broadwater County Attorney Cory Swanson announced his candidacy for the state’s chief justiceship, setting up a contest against Jerry Lynch, a former magistrate for the U.S. District Court in Montana, who launched his campaign this summer, shortly after incumbent Mike McGrath told Montana Free Press he would not seek re-election.
More candidates could still enter the race — candidate filing doesn’t officially open until Jan. 11 and ends three months later. But several political observers told MTFP this week they believe the table is set for the races for the two open seats on the high court — incumbent Justice Dirk Sandefur also said earlier this year he would not seek re-election.
Vying for the chief justice seat are two candidates with vastly different track records. On one side: Lynch, a 71-year-old with decades of experience in the federal judiciary who described himself as a former plaintiffs’ attorney for “widows, victims of predatory lending, people with insurance issues and so on.” On the other: Swanson, a 47-year-old county attorney and military veteran with no judicial experience but more recent service in a state courtroom than Lynch; a “tough-on-crime” prosecutor who shared a law practice with prominent conservative lobbyists before taking a job under former Republican Montana Attorney General Tim Fox. For a brief period in the fall, the race also featured former state auditor John Morrison, though Morrison aborted his campaign in its early stages and endorsed Lynch.
“I now am confident that Judge Lynch has the momentum and profile to defend our Constitution and courts and win this election,” Morrison said at the time. “I do not want to waste resources or create divisions that could undermine our shared commitment to uphold constitutional freedoms, court access and the rule of law in this critical time.”
RELATED The politics driving the Montana Supreme Court races Members of the state’s highest court have spent much of the last year defending their branch of government while prominent Republican officials publicly challenge the judiciary and scrutinize its operations. Now, some of those same Republican officials have thrown their weight behind a particular candidate and levied public smears against both incumbents, inserting overtly partisan messaging into traditionally nonpartisan races.
Both Lynch and Swanson have pledged to adjudicate free of outside influence and to protect the integrity of the court. But none of that means that politics don’t infect judicial races, especially in recent years.
A protracted separation-of-powers conflict over legislative subpoena power, a spate of constitutional challenges to laws passed by the newly empowered GOP legislative majority, and attacks by members of that party — prominently including Attorney General Austin Knudsen — on the judiciary’s integrity and independence have all meant that judicial politics have reached a fever pitch. GOP critics often accuse the justices of “legislating from the bench” — in other words, handing down rulings that expand the meaning of the law rather than ruling based strictly on its text. In 2022, a massively expensive campaign between an incumbent justice and a Republican attorney focused on similar questions of partisanship and the power of the judiciary. The incumbent, Ingrid Gustafson, retained her seat.
The departure of McGrath and Sandefur — two jurists, both once Democratic officials or candidates, who are often the target of Republican ire — makes it unlikely that the slate of Supreme Court races this session will be any less intense. District court judges Dan Wilson and Katherine Bidegaray are vying for Sandefur’s seat.
“From a conservative viewpoint, the opportunity to change two seats in one election is not something we’ve had the opportunity to do,” Jake Eaton, a GOP political advisor to both Gov. Greg Gianforte and Knudsen — and a frequent operative in judicial races — told MTFP.
The degree to which judicial candidates embrace or even recognize the political dynamics of their races varies, and judicial codes of conduct restrict their ability to comment on cases that could come before the court. Swanson acknowledged that he has a conservative past but that a judge needs to set their agenda aside. The court, he said, sometimes has a tendency to “push the ball down the field” in certain policy areas beyond what is dictated by the case before them.
Lynch has explicitly positioned himself as an independent jurist dedicated to defending the Montana Constitution who will resist attempts by “political extremists” to overhaul the court.
At a fundraiser in Great Falls last week, he was more explicit: “The judiciary is the last bastion against a supermajority, so to speak. And you know what I’m talking about.”
JERRY LYNCH
Lynch comes from Butte. His late brother, Jack, was a former chief executive of Butte-Silver Bow County. Jerry Lynch’s nephew is state Sen. Ryan Lynch, D-Butte. As far as he knows, he said, he’s not related to J.D. Lynch, the late longtime Butte lawmaker and lobbyist, but he said they enjoyed a close friendship.
“I was one of five siblings. All of us got college educations, the first ones in our family. I hate to use that because sometimes that’s overdone, but to us, it was very, very important,” Lynch told MTFP in an interview last week. “We were union-raised. And what I mean by that is that I had a grandfather who died of black lung disease. My wife…had a grandfather who died of black lung disease. And so the union’s influence in our life was tremendous. From my perspective, they made life equal.”
He initially set out for a career in biology before pivoting to the University of Montana law school for a more “people-oriented” career. In his early legal career, he clerked for federal judge and former Montana Chief Justice Paul Hatfield, before entering private practice. In 2006, a panel of other federal judges appointed him as magistrate, a position with eight-year terms that helps federal district courts handle caseloads.
Former federal magistrate court judge Jerry Lynch, a candidate for chief justice of the Montana Supreme Court, addresses supporters at a fundraiser in Great Falls in December 2023. Credit: Arren Kimbel-Sannit / Montana Free Press
“As a magistrate judge, we had full authority, so to speak, to handle any kind of case in the federal court system except a felony criminal trial,” Lynch said.
In 2019, Lynch retired from the federal bench. He decided to run for Supreme Court, he said, because of the political attacks against the judicial branch in recent years — attacks that include personal slights against justices from Knudsen.
“The last bastion in my view to protecting individual rights and protecting the rights of the Constitution is the judiciary,” he said. “It is an independent branch of government. It’s coequal under our Constitution. And we can’t have it become not co-equal because of political people who want to make a statement about the judiciary.”
The Constitution, he said, and by extent the judiciary, exists to protect minority interests from those of the majority.
“You can stack a bunch of bricks and call it a democracy, but that can be knocked over unless you have the foundation and the mortar” — the judiciary — “to hold that together,” he said.
In remarks to supporters at a Great Falls bar last week, Lynch elaborated on this philosophy.
“Why am I running? I’m running for 12 reasons,” he said. “One through 10 are my grandchildren. Eleven are your families. Twelve are the future generations. We have an obligation as stewards of their future to protect the independence of the judiciary. Why?”
He went on to list — in greater detail than candidates for Supreme Court will often respond to legal questions — several protections in the Montana Constitution.
“They need to be assured of a number of things. Number one: They need to be assured that they will have the opportunity for a free quality public education,” he said. “Secondly, we need to ensure, as their stewards, that the future generations, our grandchildren, can rest assured that their right to individual dignity, their right to equal protection, their right to privacy will allow them to make the decisions that they need to make to inform how they wish to lead their life. Free from government interference, especially when it comes to reproductive rights, but in every respect. We also, as stewards, need to ensure we have a clean and healthful environment.”
The Montana Supreme Court ruled that the state Constitution’s broad privacy protections also ensure the right to abortion in 1999’s Armstrong v. State. The “clean and healthful environment” language lives in Article IX of the Montana Constitution.
But both of these provisions are central to intense legal-political fights. The Legislature has passed several abortion restrictions overturned in court under the Armstrong ruling. And Article IX was at the center of the recent youth-led climate lawsuit in Montana.
RELATED Who’s running for office in Montana in 2024? Here’s a running list. Montana’s 2024 ballot will host a suite of consequential elections — among them a race that could decide the balance of the U.S. Senate, two open seats on the Montana Supreme Court, two U.S. House races, Montana’s governorship and a bevy of statewide offices. Here’s who’s queuing up to run.
“Precedent is essential for our system, and precedent provides stability,” Lynch told MTFP.
Montana’s code of judicial conduct — a series of canons promulgated by the Supreme Court — says candidates for judicial office may not “Make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court … or in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”
Mike Black, a Montana lawyer and former candidate for Supreme Court who said he supports Lynch, said that candidates for the bench have to be careful with their public pronouncements.
“On the other hand, during my brief campaign, this came up — I really thought that the right to privacy was in jeopardy,” Black said. “And I thought it was settled law. I think that it’s fair to talk about whether something is settled law.”
But Black said that Lynch’s politics haven’t revealed themselves through his rulings.
“His name is Lynch and he’s from Butte so I can guess, but I wouldn’t know it from him as a judge,” he said.
Lynch’s entry into the race triggered some early opposition spending. In July, the group Montanans for Fair Judiciary sent out mailers painting Lynch as a “liberal trial lawyer” and too old to sit on the court. That group is associated with Eaton, the political consultant. The committee spent around $1,100 on the mailers.
Montana Supreme Court justices serve eight-year terms. If Lynch wins next year, he’d be almost 80 by the time he’d be up for re-election. Even to some in the legal field who aren’t necessarily opposed to Lynch, this comes as something of a concern.
“I had hoped that it would be somebody younger,” Dennis Lopach, a Montana utility attorney and legal analyst, told MTFP. “Continuity [on the court] is good, and it’s doubtful he’d run again when he was 80.”
CORY SWANSON
Swanson, who grew up in several towns along the Hi-Line, joined the National Guard when he was an undergraduate student at Carroll College, he said. He later attended Montana State University and ultimately law school at the University of Montana.
In his early legal career, he worked in a private government relations practice with prominent — and often conservative-aligned — lobbyists Mark Baker and Jerome Anderson. But several deployments overseas interfered with his legal career, he said. In 2013, he was tapped as a deputy attorney general under Republican Tim Fox, a position he held for two years before winning election as Broadwater County attorney, a non-partisan job. He’s been the county attorney since and said he’s winding down his National Guard service.
As Broadwater County attorney, he prosecuted Lloyd Barrus, who in 2017, along with his son, shot and killed a Broadwater County Sheriff’s Office deputy. Barrus was ultimately sentenced to life in prison. In 2021, Swanson prosecuted Sen. Jason Ellsworth, R-Hamilton, after Ellsworth was pulled over in Broadwater County speeding in a construction zone. Ellsworth, according to police documents, got out of his car and name-dropped the attorney general in a conversation with the trooper who pulled him over. Swanson later agreed to drop the charge that Ellsworth was driving 88 miles an hour in a 55 miles-per-hour zone if he pleaded guilty to obstructing a police officer.
“It was just a matter of the highway patrol trooper doing her job; she was enforcing the speed in a construction zone. The defendant tried to pull the I’m-a-big-deal card,” Swanson told MTFP. “But I didn’t view that case as a chance to extract a pint of blood from him. When you do enough cases, you come to realize that usually you’re catching people at the worst day of your life.”
He spent much of 2022 deployed, he said, and missed most of that Supreme Court election’s debate about partisanship and the separation of powers. When he returned, people weren’t exactly banging down his door to recruit him for a judicial campaign, he said. In fact, several observers said they thought he might run for attorney general, a possibility Swanson himself acknowledged, but incumbent Republican Knudsen’s decision to seek re-election ended his consideration.
Broadwater County Attorney Cory Swanson is running for chief justice of the Montana Supreme Court Credit: Courtesy / Cory Swanson for Chief Justice
He said he saw the two forthcoming vacancies on the bench as an opportunity to give voters a choice — he emphasized that he’s not running against Lynch as much as he’s running for the Supreme Court.
“Lynch has had a distinguished career,” Swanson told MTFP when he launched his campaign, “but I come from a different background. I present a good contrast.”
He noted that most of Lynch’s career on the bench has been spent as a member of the federal court system, not the state, and that his recent prosecutorial experience in trial court gives him a fresh perspective.
He strenuously resisted the idea that his bid for the court has ideological stakes.
“There’s going to be a temptation to typecast me as a Lawrence Van Dyke or a Jim Brown or whomever,” Swanson said, referring to two recent conservative candidates for the court. “I think the whole framework is a little different than that.”
Swanson acknowledged his background as a political conservative but said that the philosophy of judicial conservatism and restraint under which he’s running is a separate thing.
“I don’t believe it’s about the stakes of rewriting privacy laws or picking sides in the culture war,” he said. “I think it’s about the stakes of the Supreme Court focusing on judicial integrity and intellectual rigor. Decide the case before you, don’t decide the case based on the result you want.”
He was reticent to name specific cases where he felt the justices went too far.
“It’s kind of a mixed bag,” he said. “I can’t sit here and say the Supreme Court has run amok on this or that. I can read a case written by any of the seven, and I can go, ‘Brilliant, I learned a lot,’ and I can read a month later an opinion by almost any of them and say, ‘You know, it seems like they went too far here.’”
His desire not to be partisan aside, Swanson announced his campaign on Montana Talks, a conservative radio show hosted by Aaron Flint.
“I’m committed to being a fair and impartial chief justice who will interpret the law and not legislate from the bench,” Swanson said on the show. “Montana voters should demand that of every judge and judicial candidate.”
Swanson acknowledged the political dynamics of the show but said he announced on Montana Talks because Flint is an old friend and Army buddy.
“He’s always begging me to go on the show,” Swanson said, adding that he happened to be in the area — Billings — for a county attorney’s convention.
Swanson’s lack of judicial experience will likely come up on the campaign trail.
“There’s a big jump from being Broadwater County attorney to being chief justice of the Montana Supreme Court,” Black, who briefly overlapped with Swanson in Tim Fox’s office, told MTFP.
But to his supporters, his perspective is an asset.
Swanson is a “great candidate and he’d be a great justice,” said Matt Monforton, a conservative attorney and former Republican state lawmaker, adding that he’s a conservative with a “good background in both criminal and civil cases.”
He worried, though, that any “conservative” candidate will struggle to win an election without an “R” behind their name. Republican lawmakers made several ultimately failed attempts this session to either require or allow partisan affiliation in judicial elections, something that would require reconciliation with the codes of judicial conduct. More liberal or establishment-oriented judicial candidates, Monforton said, will get the implicit support of the state’s legal institutions and their officers while conservatives are left “twisting in the wind.”
“One of the problems that we have with judicial races in Montana is that they are phony non-partisan elections,” Monforton said. “In other words, the candidates themselves are very much partisans, but voters are not allowed to know that. It doesn’t work so well for conservative judicial candidates who would be able to get a lot more votes if their views were known” in a state that has otherwise mostly elected Republicans in recent elections.
“If Montana Republicans were serious about taking back the courts, they would have passed those bills,” he added.
Swanson said that whatever his personal politics, parties before his court wouldn’t be able to obtain a ruling based on ideology.
“You bring a coal mine permit or an oil or gas permit, it’ll stand or fall based on whether it complies with the law,” he said.
[END]
---
[1] Url:
https://montanafreepress.org/2023/12/14/the-politics-and-philosophy-behind-the-race-for-chief-justice-of-the-montana-supreme-court/
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
