HELENA, Mont. (AP) — Republicans are making an unprecedented partisan pitch to install a party loyalist on Montana's Supreme Court by ousting an incumbent judge in a race that's seen a deluge of cash on both sides and that could affect ongoing legal challenges to abortion and voter laws passed by the 2021 Legislature.
It is part of a nationwide trend that has seen politics play a larger role in state Supreme Court races, especially after the U.S. Supreme Court said states should decide if abortion is legal.
Republican Gov. Greg Gianforte on Thursday posted messages on his campaign Twitter and Facebook accounts urging people to vote for James Brown for the Montana Supreme Court, calling him a fourth generation Montanan and a Republican.
U.S. Sen. Steve Daines, R-Montana, sent a similar Tweet, saying Brown won't legislate from the bench, a complaint often made by Republican lawmakers when courts overturn laws as being unconstitutional.
Brown is running against Justice Ingrid Gustafson, who has been a judge for 20 years and an attorney for 20 years before that.
“By law we have nonpartisan judicial elections and historically, elected officials have followed the spirit of our law and worked to uphold our laws and have not ever weighed in in this sort of blatant political fashion," Gustafson said Friday.
Political analyst Jeremy Johnson, an associate professor at Carroll College, called the level of partisanship in the ostensibly nonpartisan race “unprecedented." He attributed that partly to political polarization nationally and to the fact that all the partisan statewide elected offices are held by Republicans, along with a two-thirds majority of the Legislature.
“The Supreme Court is probably more liberal overall than elected officials are in the state, so they want to see changes," Johnson said.
Republicans are apparently willing to stretch conventional rules to make that happen.
"The old norms, the old conventions and the old rules, just even things that people respected, are not as respected as much anymore,” he said.
A PAC associated with the Montana Trial Lawyers Association has spent $1.3 million on ads endorsing Gustafson or opposing Brown this election cycle. The lawyers felt they had to counter Republican spending to “protect the independent judiciary," said association Executive Director Al Smith.
The Republican State Leadership Committee has reported spending nearly $700,000 on ads supporting Brown.
Brown, an attorney and the president of the state commission that regulates monopoly utilities, said at a Republican candidate forum in May that Gianforte asked him to consider running for the Supreme Court. Brown has never served as a judge.
The Montana Republican State Central Committee has also campaigned on behalf of Brown, sending mailers touting Brown's support from Gianforte, Daines, U.S. Rep. Matt Rosendale and Montana Attorney General Austin Knudsen — all Republicans.
Montana's Supreme Court candidates cannot seek, accept or use partisan endorsements. Under the Montana Code of Judicial Conduct, candidates are required to “take reasonable measures to ensure that other persons, on behalf of the judge or judicial candidate" don't, in part, identify a candidate as belonging to a political party.
A text sent to Brown's cellphone Friday asking if he's taken any steps to prevent such endorsements was not immediately answered.
Brown has criticized attorney donations to Gustafson, saying lawyers that may end up with cases before the court should not donate to judicial candidates.
Gustafson said Brown appeared to be grasping for outside support since he does not have any among Montana legal professionals and the judiciary.
The Montana Supreme Court will soon be ruling on legal challenges to laws passed by the Republican-controlled Legislature in 2021, including a law to ban abortions after 20 weeks of pregnancy, down from 24 weeks; barriers to medical abortions; and a requirement that providers offer the opportunity to view an ultrasound or hear the fetal heart tone before an abortion.
In appealing a lower court's ruling to block the new abortion laws, the state asked the Supreme Court to overturn its 1999 ruling that held Montana's constitutional right to privacy guaranteed the right to a legal abortion. The Supreme Court said it could not take up that issue at the time because it was just ruling on a temporary injunction.
There are also court challenges to laws that ended Election Day voter registration and made a student ID a secondary form of identification when registering and voting. Those laws are temporarily blocked for Tuesday's election.
In a letter sent “from the desk of Governor Greg Gianforte” and paid for by the Montana Republican State Central Committee, Gianforte urged a constituent to vote for Brown because “the Montana Supreme Court is controlled by liberal activist judges who legislate from the bench and actively work to undo all of the great progress the legislature and I are making."
Gustafson said in her years as a judge, she has tried to be a fair arbiter and “this idea that we're gonna have some sort of agenda for our courts is just very bad for Montanans.”
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