Much as I rail against the two-party system, it has its advantages when you get down to the bottom of the ballot—you know, those races you meant to check out but never got around to.
If you hate taxes, worry about coal-mining jobs and think people should be able to do whatever they want except smoke dope, abort babies and marry the sex of their choice, vote for the Republican. If you love government, worry about global warming and think people should be able to do whatever they want except own guns, burn gasoline and block bathroom access, vote for the Democrat.
That shorthand doesn’t work on judicial races, which supposedly are nonpartisan. Now the Citizens United decision, which opened the door to dark money in Montana judicial races, is changing that. It’s not a good thing.
According to a journal article by Anthony Johnstone of the University of Montana School of Law, debate over the state’s spotted history of judicial selection goes back to territorial days, when Montana Supreme Court judges were appointed by the president. In 1884, a Montana newspaper lamented, “Seventy-five thousand people in the Territory to make laws for themselves, and a Hoosier sent out from Indiana to tell us what we have done. How long, oh Lord; how long!”
Shortly after Montana became a state, Copper King William A. Clark offered judges $100,000 bribes. Then the Anaconda Co. controlled the state for decades.
The 1972 constitutional convention debated a variety of ways to clean up judicial selection, including public financing of campaigns. Supporters of partisan elections noted that fewer people voted on judicial races when they didn’t know where candidates stood. They also pointed out that many judges started out as elected officials in partisan races, so their politics were well known.
Opponents said that political parties have to forge positions on a wide range of issues and for a wide variety of constituents. Judges need to be above that ongoing fray.
Delegates wound up with compromises that pleased no one, least of all the voters, who have repeatedly supported amendments to change how we pick judges. Justice John C. Harrison called the 1972 constitutional fix the “worst judiciary article in fifty states.”
Since the Supreme Court’s Citizens United decision, things have gotten worse. In 2012, Laurie McKinnon was elected to the Montana Supreme Court with support from the Montana Growth Network, which drew most of its money from out-of-state corporations and billionaires Charles Schwab and James Cox Kennedy of Cox Enterprises. Their money bought ads depicting opponent Ed Sheehy as soft on crime.
In the 2014 election, out-of-state groups lined up behind Lawrence VanDyke. He was seeking to unseat Justice Mike Wheat, who drew large contributions from trial lawyers.
Three-quarters of the spending in that race came from out-of-state interests, the second-highest percentage of independent expenditures in any supreme court race in the country. The Republican State Leadership Committee, a corporate-backed organization dedicated to electing Republicans in state and local races, donated more than $430,000 to VanDyke’s campaign. Much of the money went to ads depicting Wheat as soft on crime.
Which brings us to 2016. Kristen Juras, who teaches law at the University of Montana, is backed by business interests and the RSLC. Dirk Sandefur, a district judge, is backed by trial lawyers. In Democratic and Republican shorthand, he’s the D and she’s the R.
But it isn’t that simple. Both present themselves as fair and unbiased legal minds. Sandefur’s long experience might be enough to swing the vote his way in a purely nonpartisan race. But the RSLC has been backing poorly documented ads through the Set ’Em Free Sandefur Committee alleging that he is soft on crime.
Sandefur came across as a bit of a bully in a televised debate, and he told gay and lesbian activists, “My opponent believes bigots and haters have the right to discriminate against you.” He also has said, “The Montana Supreme Court is no place for my opponent’s documented religious activist agenda.”
Juras comes across as bright and spirited, and she posted on Facebook, then removed, a parody song that showed she has a sense of humor, if not much of a singing voice. But she also has made some odd slips.
She donated $50 to the effort to defeat a medical marijuana initiative, indicating bias on an issue that has been before the court and may well return. She rekindled a fight with the Kaimin, the University of Montana school newspaper, and apparently made clumsy factual errors in the process. The fight started in 2009 over Juras’ complaints about a Kaimin column of sex advice, about which Juras said, “I don’t think journalists can stand behind freedom of speech every time someone objects to one of their columns.”
Environmentalists fear that she is fundamentally on the wrong side on stream access, and civil libertarians fear that she is a little too eager to take the conservative side of religious freedom cases that may come before the court.
Juras acknowledges her Christian background but says that should not be a factor in a judicial race. “An opinion is not a bias,” she has said.
But it isn’t clear how much any of that really matters. Montana has become a battleground fought over by people whom we don’t know and who don’t care about us. As Roy A. Schotland, a professor of law at Georgetown University, put it, “The greatest current threat to judicial independence is the increasing politicization of judicial elections. They are becoming nastier, noisier, and costlier.”
As the elections become more politicized, the courts themselves are becoming more political. The Brennan Center for Justice says that ads purchased by outside groups are 10 times more likely to be negative than ads purchased by candidates themselves.
The negative ads often accuse targets of being—you guessed it—soft on crime, and the ads work. The center examined 10 studies and reported that all 10 concluded that judges are more punitive toward criminal defendants during election campaigns.
A study by the Emory University School of Law found that doubling the number of TV ads made campaigning judges 8 percent more likely to deny criminal appeals. As one Nevada justice put it, “Judges are supposed to be judging crime, not fighting it.”
A study in Ohio found that judges ruled in favor of campaign donors 70 percent of the time. Mother Jones reported in 2014 that Montana was one of 26 states given a failing grade by the National Institute on Money in State Politics for how it monitors spending on judicial races.
As Johnstone, the UM law professor, points out, gone are the days when copper kings and robber barons had to resort to such crude tactics as offering six-figure bribes to judges. Now they can just funnel money through a variety of political action committees and activist groups, with no muss, no fuss and no accountability.
The hole is deep, and we dig it deeper with every election. How long, oh Lord, how long?