The Hardliner did a nice job of summarizing Montana Supreme Court Justice Pat Cotter's record of voting overwhelmingly with the desires of the Montana Trial Lawyer's Association and the ACLU. Also pointed out is that the MTLA's PAC spent over $100,000 getting her elected in 2000 -- and as noted, that has been money well-spent.
And Hardliner also reminds us of the huge amounts of PAC money that Montana's trial lawyers dumped into Justice Jim Nelson's re-election in 2004.
We've noted this before, commenting on the ineptness of Republicans in this state when it comes to understanding the impact that judicial races have -- a lesson Democrats didn't need to be taught. Their superior grasp of what was at stake paid great dividends during the last legislative redistricting in Montana, as well as in winning a controversial and critical state House race in 2004.
We also noted, during the discussion over proposed state funding of judicial races, that Democrats may begin to realize that they have been perhaps a little too successful in working the judicial selection and election processes in this state, thus overplaying their hand.
Perhaps it is wishful thinking, but during the last legislative session, the representative of the MTLA admitted in his testimony before the state Senate Judiciary Committee that most Montanans would consider there to be a conflict of interest when lawyers give large amounts of money toward the elections of judges before whom they will hear cases. Might they decide to back off a bit in those contributions? Again, probably wishful thinking.
The MTLA and their PACs will, rather, doubtless be pouring whatever is necessary into getting Cotter re-elected -- she is perhaps the best friend the trial lawyers have on the Court. She has all of Jim Nelson's reliability in voting -- plus she is a whole lot smarter than Nelson, by all reports. In fact, she is reputed to be the sharpest mind on the Court, period.
As we have learned by watching at the national level, it is not just how a justice votes, it is how much clout a justice has in persuading the other justices and in crafting opinions, based on intelligence and articulateness -- of which, again, Cotter has plenty. Rest assured, the MTLA is going to do what they can to get her re-elected.
We hope that a smart and conservative-minded attorney or judge will rise to the occasion and give Cotter a challenge in this race. Cotter may be a fine legal mind, but her votes reflect a judicial philosophy that is anything but restrained, and that is at least as important as intelligence. Democrats agree, otherwise they would like the many brilliant conservative justices on the U.S. Supreme Court.
Conservatives in Montana need to do several things:
1. Help educate Montanans on the importance of judicial races by illustrating the kinds of decisions that the Montana Supreme Court has made, by discussing the inordinately large percentage of lower court decisions that they overturn, and by pointing out the partisan role they have played -- both in redistricting and in the 2004 legislative race up in Flathead.
2. Educate Montanans on the sheer size of trial lawyer donations that get poured into these races via PACs, which circumvent the limitations on individual contributions to judicial races. We need to make sure that the public has this information, so voters can understand that only one judicial philosophy is getting the vast majority of the ad time in these campaigns -- and that a judicial philosophy is what is at stake.
3. Not attack Justice Cotter personally. From what we understand, Cotter simply believes most of the same things that trial lawyers believe, and did so before she was ever elected. The MTLA put their money on her (and will again) because they knew how she thought and would likely decide cases. This is very different from saying that she decides cases in a certain way because she got certain donations. It will take more than a listing of how she has voted to convince Montana Headlines that she votes the way she does because she is a "bought and paid for" tool of the MTLA. They may have financed her election, but they didn't buy her, in the sense that most people would understand that accusation.
4. Highlight those Supreme Court decisions Cotter played a role in that we feel go against the principles of a restrained and conservative judiciary. Again, this should be a matter of disagreeing with Cotter's judicial philosophy on these cases, not a matter of accusing her being a shill for the trial lawyers.
5. Contribute money and form PACs to help with advertising and education that will counterbalance -- at least somewhat -- what the trial lawyers put into Supreme Court and AG races. This is something we can do even if we don't have a candidate in the race.
Conservatives are way behind in many, many ways in the politics of this state, and the elected judiciary is just one of those areas where Democrats have run circles around us. A long road is ahead -- it's time to get started with this process of education and debate.
As the Hardliner points out, the Montana media isn't going to put the spotlight on the judicial philosophy, the judicial decisions, or even on the money that pours into these races.
That will be up to us.