HELENA — Democrat Steve Bullock had an oversized influence on the Montana judiciary during his eight years as governor, appointing 28 judges and justices – half of the state’s entire judiciary.
In part, that influence led to a controversial change this year in how the Montana governor can fill judicial vacancies.
His successor, Republican Gov. Greg Gianforte, asked the 2021 Legislature to give him direct power to appoint judges to the Supreme Court and state District Court, eliminating a long-standing commission that vetted and chose finalists for open positions. The GOP majority quickly agreed to the change, putting it into law.
“The prior system was flawed and this is a much better approach,” Gianforte told MTN News this week in an interview. “The old process was really rigged by the trial lawyers. They produced a very short list of people. Generally, they only produced three, and I (would have) had to pick from their list.”
But a review of Bullock’s appointees by MTN News shows that only a half-dozen were active members of the Montana Trial Lawyers Association. The judges chosen by Bullock include former prosecutors, public defenders, and experts in civil, criminal and family law.
Bullock and several current judges and attorneys who spoke to MTN News also said the state judiciary is a diverse lot, regardless of whether they’re appointed or elected – and that they strive to keep politics out of their decision-making.
“It wasn’t politics or necessarily my philosophies that went into trying to pick who would be a good judge,” Bullock said. “It was truly trying to find out who’s going to be on the bench, recognize that it is an independent branch of government and give a fair shake to whoever is before them on that bench.”
The old Judicial Nomination Commission wasn’t controlled by any one group, said its last chairman, District Judge John Brown of Bozeman. It selected finalists from a list of attorneys who chose to apply.
“We couldn’t control who applied for these positions,” Brown told MTN News. “Our job was to screen the candidates and to make our recommendations on who would be the best judges.
“I’ve never met Gov. Bullock, ever. Nobody ever talked to us about who we should send up or who we shouldn’t send up.”
In Montana, judges are elected, but run as “nonpartisan” candidates, not connected to any political party.
But if a state district judge or Supreme Court justice departs in the middle of his or her term, the governor fills the vacancy by appointment. The new judge then must run in the next election, or, depending on the timing, also be confirmed by the Montana Senate.
Bullock appointed 24 of Montana’s 49 state district judges during his eight years as governor, two Supreme Court justices and the state Workers’ Compensation Court judge, twice. All but two of these judges survived confirmation or re-election and are still on the bench.
Of Bullock’s appointees, nine were members of the Montana Trial Lawyers Association, including six considered by the group as “active” members; eight had worked as prosecutors, nine had worked mostly in various types of civil law; and at least six were public defenders or had done criminal-defense work.
Bullock also appointed the first openly gay district judge in Montana and 12 women to the bench – although one of his female appointees lost re-election after her appointment and another, Michele Levine, was the only Bullock appointee rejected by the Republican-controlled state Senate in the confirmation process.
“Because Gov. Bullock had an opportunity to appoint so many people, he also had an opportunity to increase the diversification (of the bench),” said District Judge Leslie Halligan of Missoula, a Bullock appointee in 2015. “There is a better balance between male and female.
“Individuals who come before the court want a judge who looks like them, who understands their life, their perspectives, their hardships.”
Under the old process, the seven-member Judicial Nomination Commission, in place since 1973, reviewed applicants for judicial vacancies and forwarded three-to-five finalists to the governor, who had to choose from that group.
The governor appointed four members of the commission; the Supreme Court appointed two and the Montana Judges Association chose the state district judge who chaired it.
Now, Gianforte can choose to appoint whoever he wishes. However, in his first appointment – to replace Levine, in Great Falls – Gianforte formed a local advisory committee, which evaluated applicants and recommended Great Falls attorney Dave Grubich.
Gianforte appointed Grubich last month.
“We selected a broad swath of folks that understand the local expertise and the legal community, included both Democrats and Republicans and we took their suggestions,” Gianforte said. “They deliberated; I think they did a great job.”
The governor said he plans to use a similar process when he appoints someone to fill a new, additional district judgeship in Bozeman this fall.
Gianforte and GOP state legislators have said they wanted to have more control over filling spots in the state judiciary.
Majority Republicans at the Legislature also have accused the current judiciary of being unfairly biased against GOP-passed laws and suggested it’s over-populated with liberal judges.
Judges and attorneys who spoke with MTN News strongly took issue with these accusations, saying politics not only don’t enter into judicial deliberations, but also rarely have anything to do with their day-to-day job.
“Almost everything that judges work on … is bread-and-butter criminal and civil litigation, a lot of family law,” said Anthony Johnstone, a University of Montana law professor who’s studied the state judiciary. “It has almost nothing to do with the hot-button issues that we see bandied about the discussion of judicial appointments, whether at the state or federal level.”
“I had a whole variety (of law) in my career, and I think that’s true of a whole bunch of judges,” said District Judge Greg Todd of Billings, the head of the Montana Judges Association. “They come from a wide variety of backgrounds and they don’t have a political agenda at all.”
The state Supreme Court is the one that makes decisions sometimes considered “political,” they said, such as the final call on whether laws are constitutional or not.
Bullock has appointed two Supreme Court members: James Shea, a former Work-Comp Court judge and former member of the trial lawyers association, and Ingrid Gustafson, a former state district judge who was appointed to that position by Republican Gov. Judy Martz.
The other Supreme Court members include Mike McGrath, a former Democratic attorney general who ran for governor as a Democrat; Jim Rice, a former Republican state legislator; Laurie McKinnon, a former district judge who’s been supported by conservatives during her elections; Beth Baker, who worked in private practice and under Republican and Democratic attorneys general; and Dirk Sandefur, a former state district judge, prosecutor and police officer.
Al Smith, executive director of the Montana Trial Lawyers Association, told MTN News that about 20 years ago, the group began encouraging its members to apply for judgeships, because it felt the Montana bench was overly populated with former prosecutors.
MTLA members generally represent people who’ve been injured in accidents, by corporations, or government actions, he said.
“We feel that the things that we do, everybody should be supportive of – asserting your constitutional rights, protecting your constitutional rights, and your access to jury trials,” Smith said. “Unfortunately, Republicans have a party platform that says, `get the trial lawyers,’ basically.”
Yet even though some MTLA members have applied for judgeships and won appointment by Democratic governors in recent years, they’re still in the minority on the bench – and, they don’t simply rule a certain way on a given case, he added.
“You don’t have as much leeway with the law, as you do in politics, as far as `liberal’ or `conservative,’” Smith said. “Those tags don’t really cut it. They don’t actually reflect what judges do.”
Bullock echoed Smith’s comments.
“Just because someone was a member of the trial lawyers, it’s not like they’re always ruling for the plaintiffs,” he said. “Just because somebody was a public defender – that doesn’t mean they’re letting all the criminals off.
“You want highly professional judges, and I can look through that list, and say I was fortunate enough for the Nomination Commission to give me folks who had the potential to be highly respected judges.”
Judges also said they took offense at the suggestion that they’re pre-judging cases – and said those accusations are a political attempt to undermine an independent branch of the government not under any party’s control.
“People are attempting to substantially upset that constitutional balance that our founding fathers set,” Todd said. “There is a reason that the judiciary is a separate and independent and co-equal branch.
“I’m afraid that the Legislature disagrees with some rulings that some judges may make, and they’re trying to enforce a more powerful imprint of their own on the judiciary. I think that’s scary for everybody. We need independent branches of government that have those checks and balances as the constitution set up.”