Tuesday, February 27, 2007

Financing judicial races

There is certainly a major problem with the perception of the independence of the Montana Supreme Court.

It is a national champion at overturning the decisions of its District Court judges in criminal cases. Defendants in civil suits would rather pay up than appeal to the Montana Supreme Court, even when they think they have a good case. This is because in recent years, chances are that not only would they lose, but the good justices up in Helena would probably go beyond merely ruling against them and establish precedents that would make things even worse for the next defendant. (Or more favorable for the next plaintiff's attorney, depending on how one chooses to look at it.)

And then there is the partisan advocacy of the Court -- about which more later.

With the recent election of Brian Morris, who promises to be a bit of an intellectual powerhouse without an obvious plaintiff's axe to grind, there are hopes that some reason will begin to prevail, but only time will tell. And there is a lot of lost credibility to be regained.

The Senate yesterday passed a measure proposing to have optional public funding for Supreme Court races. It was pointed out by the Montana Trial Lawyer's Association (MTLA) representative during the Judiciary Committee hearing that Republican Cindy Younkin (who lost to Justice Jim Nelson in the latter's hotly contested 2004 re-election campaign) had advocated a similar measure back when she was in the legislature. The measure furthermore passed 30-20, so this is not a strictly partisan issue as such.

Still, like public funding or campaign finance reform of any kind, it will likely just spend more public money without really accomplishing what is intended. When a lot is at stake, there is always a way to get more money into a campaign -- as shown by the rapid proliferation of liberal 527 organizations before the ink was even dry on the McCain-Feingold act.

On the one hand, since more conservative candidates do not have the deep pockets of the MTLA to fund them, it is possible that this could give them a little more even playing field. Laslovich also pointed out in committee that the current system makes it difficult for someone who isn't a good fund-raiser to get elected to the Supreme Court, wondering if that was really a characteristic we want in our justices -- a good point.

On the other hand, there will be nothing to stop the real money in these campaigns -- the trial lawyers' PAC money. During some rather circuitous questioning in committee, Sen. Jerry O'Neill, R-Columbia Falls, managed to discover and get on record what everyone else already knew -- namely that the MTLA PAC raised and spent nearly $400K getting Justice Nelson re-elected in 2004, with many individual donations to that PAC being in the $10 - 30K range.

On the floor yesterday, O'Neil (ordinarily not a paragon of clarity) made the very good observation that "If (a candidate wins), they are elected to the Supreme Court. If they lose the election, they will have a well-advertised law practice..."

All in all, it may not make a big difference. As we pointed out before, Democrats have been way ahead of Republicans when it comes to understanding the advantages of having a crudely partisan Supreme Court in Montana. And the MTLA in particular has understood how to work the judicial selection process to their advantage.

A disaster like Jim Nelson was, after all, appointed by Republican Gov. Marc Racicot with advice from the helpful Montana legal community. This only goes to show that the same general principle holds true in Montana as is true on the national level -- Republicans mess up these appointments, but Democrats don't.

The Montana Supreme Court's partisan involvement in gerrymandering Montana's legislative districts was a wake-up call to Republicans, as was their involvement in throwing out the votes necessary to hand HD 12 (and thus control of the House) to the Democrats in 2004.

In our post linked to above, we accused Republicans of "bringing a knife to a gunfight" when it comes to understanding the Supreme Court -- in other words, if the Democrats are going to treat the Supreme Court as a partisan body, Republicans need to respond in kind.

As we stated above, it probably doesn't make any difference at all whether this measure passes the House and becomes law. What is more worth noting is that measures like Laslovich's are probably a last-ditch attempt by Democrats to try to bring a public perception of impartiality back to the Supreme Court -- but frankly it is going to take a lot more than this bill.

The Democrats and the MTLA have overplayed their hand, and it seems that they know it and are rightly fearing the coming backlash.

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