The GOP’s Attack on Constitutional Checks and Balances in Montana

Right when you think the Republican-dominated Montana legislature and governor can’t get any worse, they do. A number of bills that Gov. Greg Gianforte happily signed into law are already facing court challenges, so to stack the deck in their favor, both the governor and the legislature have launched a new and shameless attack on the judiciary — the “separate but equal” branch of government that is likely to toss their unconstitutional laws in the garbage where they belong.

The initial volley in this highly partisan battle was launched when the legislature passed a bill giving the governor carte blanche authority to appoint judges rather than pick from a list of candidates vetted by the non-partisan Judicial Nominating Committee, which has operated successfully for decades. As one attorney friend quipped: “This means the governor can pick the absolutely worst, most incompetent lawyer, and providing they’re sufficiently conservative and/or made a big campaign contribution, then he can appoint them to sit in judgment over the most serious issues facing Montanans, their lives, businesses, homes and families.”

Indeed, it’s hard to justify how paranoid Montana’s Republicans have become over the very processes — like voting — that have served the state well throughout its history. But taking a page from the Trump-McConnell playbook, they seem intent on launching a pogrom to eliminate judges they feel are too liberal and pack the courts with conservatives.

The legislators pushing the measures have been blunt in their intention to politicize the judiciary — and in their disregard for constitutionality. As reported last week, Senate Majority Leader Cary Smith told the Senate Judiciary Committee: “The intent of the bill is to have another plan if Senate Bill 140 is determined to be unconstitutional. The intent of the bill is to give the governor a wider range of ability to make selections that he would prefer to have appointed to these judicial positions. In the past we’ve had, it’s kind of stacked the other way, and we’ve ended up with quite a few judges that a lot of us would have considered to be too liberal. This gives the governor a chance to have the other side of the equation represented better and we think we have an opportunity to change the status we have with the courts and have more conservative, more people that are appointed that would be more in line with what a lot of us think we need to do to make changes in the court.”

But here’s the rub. Judges cannot make or amend laws, they must rule on the plain language of the statute — and the Montana Supreme Court is the ultimate decider of whether any given state law is constitutional. This separation of powers is essential to our system of government and provides the “checks and balances” to ensure the other branches of government are acting within the boundaries of our constitution and legal system.

Given the sheer volume of constitutionally questionable laws emanating from this legislature, it’s perhaps no wonder they want to “change the courts.” From discriminating against individuals on the basis of their sexual orientation to interfering in private contracts, this year’s legislature is setting new records for law-making incompetence.

Make no mistake, when you put people who are anti-government in charge of government, you can expect them to try to cripple and destroy government in any way possible. We saw it in the disgraced former president and we’re seeing it now, more’s the pity, in the Montana legislature’s and governor’s brazen and unwarranted attack on the independence of the judiciary.


George Ochenski is a columnist for the Missoulian, where this essay originally appeared.