The state's Republican legislative majority and its Republican executive branch are doing their best to normalize their unprecedented attack on the state's judiciary.
First came the abolition of the judicial nominating commission, a body that has effectively and without drama provided governors of both parties sensible recommendations to fill judicial vacancies. The new law puts unchecked power into the hands of the state's governor to fill judicial vacancies. The constitutionality of the law abolishing the commission, Senate Bill 140, is being challenged — rightly so in our opinion.
Billings' Sen. Cary Smith said the quiet part out loud during the session, admitting the effort's purpose is to give the governor "more power over the courts."
This arrogant overreach blatantly disregards the fundamental separation of powers between the branches of government upon which our Constitution was premised.
To advance its agenda, the majority has tried to manufacture outrage over the fact that judges across the state nearly universally opposed Senate Bill 140 before it became law. Of course they did. It's an undemocratic, unneeded, and breathtakingly presumptuous abandonment of long-held small-d democratic ideals.
Perhaps the best way to gain perspective on this is to look at the words of Supreme Court Justice Laurie McKinnon, a conservative by any measure, who wrote the unanimous opinion of the Court denying Attorney General Austin Knudsen's motion for the justices to disqualify themselves in the dispute the Republicans have ginned up.
McKinnon stated flatly, "The Legislature's unilateral attempt to manufacture a conflict by issuing subpoenas to the entire Montana Supreme Court must be seen for what it is."
Similarly, Justice Jim Rice, a former Republican legislator, went to court to challenge the subpoena issued to him in the matter. He argued that such subpoenas were part of a "campaign" by the Legislature and executive branch "to discredit and undermine the integrity of the court."
In granting Rice's request to block the subpoena, Lewis and Clark County District Court Judge Mike McMahon wrote Tuesday that he would have to be "blind" to not see that the Legislature's recent subpoena for Rice's records is not a legislative effort but instead a clash over records of political interests.
The people of Montana would have to be blind, too, not to see the same thing.
Overall, the Republican effort's goal is clearly to reshape the courts in a way to make them more complaisant to the Legislature and the governor.
The majority has even commissioned a poll to show they have popular support. But polls can be framed in ways to get the desired result, and this one certainly appears to have been engineered in exactly that way. We are told that "81 percent of voters surveyed agree that 'Montana Supreme Court justices should not be allowed to judge legal challenges to official actions taken by themselves or their employees.'"
If you asked the same Montana voters if they believed in the classic principle of separation of powers between the branches of government, and therefore in the independence of the judiciary, you'd get a similar number.
We believe the message to the Legislature, to the governor and to the attorney general on this issue is simple but clear:
Knock it off.
Leave the courts alone and let them do their jobs without interference from the governor or the Legislature.
— The Montana Standard.
The Montana Standard's editorial board includes Publisher Anita Fasbender, Editor and General Manager David McCumber and Local News Editor Kristie Constantine.