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Montana's GOP-led judicial oversight committee shows nothing but contempt for courts • Daily Montanan [1]

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Date: 2024-08-22

Sen. Jason Ellsworth, be prepared to be disappointed, possibly even highly so.

The Montana Senate’s top leader said Tuesday he’s going to be highly disappointed if anyone mistakes his judicial oversight committee as political theater.

Truthfully, it’s not even very good theater.

It’s a reboot of a tired theme, a rerun, in which Republicans are flummoxed by the state’s Constitution and concepts that should have been taught to them in elementary school, like separation of powers. Despite repeated attempts by sympathetic conservative lawyers to disabuse lawmakers of ideas that deserve ridicule, like ignoring court orders (an actual idea the committee considered), the citizens who have testified have been reserved and restrained about the truth, which is that most of our Republican Senators couldn’t pass a basic test about how the judiciary works, even though they desire to corral that branch in the absolute worst way.

So Ellsworth trudges on, needing just a little more power and a few more hearings in the hopes that he may accidentally stumble on some clandestine plot that would reveal a sinister and complex conspiracy that would prove the judiciary has had it in for the lawmakers all along.

When you spend as much time as Ellsworth and some of his Republican friends have searching and finding as little as they have, I think I understand the urge to find something — anything — that justifies their ridiculous endeavor, which the Democrats refuse to participate in, calling it a waste of time and money.

Now, the committee wants to beef up subpoena powers to compel testimony of judges and attorneys so that if they don’t show up or don’t answer all the questions, the committee could refer those reluctant witnesses for prosecution. In other words, the great witch hunters need more gasoline and some matches.

But you know, if you suggest such an exercise is political or theater, you’re risking making Ellsworth disappointed.

So, I’ll resist the temptation to call it theater until the same committee tries subpoenaing sitting judges only to watch the government standoff that will serve as the next half-baked impetus for what is a growing raft of legislation aimed at the judiciary.

For right now, the committee isn’t theater, just an extremely compelling case for better civics and government education in our public schools.

All of these special select committees and hearings have one common through-line: They all are predicated upon the faulty notion that the acts of the Legislature and the will of the lawmakers are the final and ultimate authority, superseding even the Constitution itself. By sprinkling the phrases “for the people” and “people’s representatives,” the committee members led by Ellsworth have tried to give their actions a patina of patriotism.

But a cursory look at the very things that are so upsetting to the lawmakers shows that there’s nothing wrong with the people or the judges who have faithfully, and almost uniformly, showed ultimate deference to the Constitution itself.

Take, for example, two of the topics that have rankled the lawmakers the most, climate change and abortion. Abortion, as we’ve covered so many times, is tied to the Montana Constitutional right to privacy. And, I cannot imagine something more private than the decision to give birth to a child. Furthermore, that same constitution guarantees that children shall have no fewer rights than those given to adults.

So when it comes time to enact anti-abortion laws, the Legislature must do so without violating those two very fundamental concepts, which for reasons that I cannot comprehend, seem to elude the special select committee.

Furthermore, that same constitution guarantees a right to a clean and healthful environment. A plain reading of it seems to mean that mining pollution, climate change due to greenhouse gases, and polluting rivers and streams can’t be ignored — something that Judge Kathy Seeley found in now-famous Held vs. State of Montana.

A growing want-list of legislator ideas seems as dubious as the rest of the committee’s work, and includes such ideas as showing deference to the executive and legislative branch, a concept that is already deeply rooted in the very concept of judicial review.

But in case you may think that I am just cherry-picking the most outlandish ideas, there’s simply not enough room to write about the inane exercises that legislative drafters must start contemplating, like creating either appellate or constitutional courts (there is one already, it’s called the Montana Supreme Court). Or, a bill that would allow the Legislature to ignore certain court orders (… at that point, why even have courts at all?). There’s another bill that would seem to require legislative approval of citizen’s ballot initiatives, an idea that would mean ignoring the constitution and our state’s history (the original impetus for the citizen’s initiative goes all the way back to 1912 when lawmakers wouldn’t listen to the people).

During Tuesday’s meeting, Ellsworth declared:

I don’t care if you’re a Democrat or you’re a Republican, what you want and what the court is obligated to do is to be fair, impartial. And they’re a separate branch of government, and they’re co-equal, and we all want that. But we don’t want politics in the judiciary. That’s all we’re here to do.

And yet that same committee’s list of proposed legislation includes resurrecting a failed attempt at making judicial races in Montana partisan.

Lemme get this correct: Ellsworth expects Montanans to believe the committee is acting earnestly out of nonpartisan concern, when the very committee he is leading wants to do the exact opposite of what he just said?

The simplest explanation for this committee is that Republicans are trying to find a way to undercut, undermine and dismantle the state courts because they’ve been unflinchingly loyal to the law and the Constitution, not the Legislature’s ultra-conservative agenda. And like spoiled children, the Republicans are throwing a temper tantrum masquerading as a legislative hearing.

Ellsworth may be correct on one thing, though.

It’s not theater.

These lawmakers aren’t acting.

They are, to borrow a phrase from the same courts they despise, holding the courts in contempt.

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[1] Url: https://dailymontanan.com/2024/08/22/montanas-gop-led-judicial-oversight-committee-shows-nothing-but-contempt-for-courts/

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