Montana’s judiciary strikes again on capital punishment

Montana Headlines last addressed the issue of capital punishment in the context of Gov. Brian Schweitzer’s contemplation of granting clemency to one of our two death row denizens here in Montana. Now, one reads that a Montana judge has put a stop to executions in Montana by claiming that Montana’s lethal injection policy amounts to “cruel and unusual punishment” under both the U.S. and Montana Constitutions.

I don’t know what the situation is with the Montana Constitution, but it is a joke that it could be contrary to the U.S. Constitution, given that lethal injection is the most widely used means of execution in the U.S. -- and the U.S. Supreme Court hasn’t shown any inclination to stop it.

In addition, there were as recently as 2010 an electrocution in Virginia and a firing squad execution in Utah. The U.S. Supreme Court stopped neither of these. Are we supposed to believe that a lethal injection is more “cruel and unusual” than these -- no matter what specific technique is used for the lethal injection? According to the AP article, the judge thought that there were inadequate procedures for "verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs.”

Given that those felons in Utah and Virginia weren’t anesthetized before their shooting and electrocution, respectively, it seems ridiculous to require that there be an incapability of feeling any pain whatsoever prior to execution for it to be constitutional.

The Washington Post article states that "State District Court Judge Jeffrey Sherlock did not question the constitutionality of the death penalty in Montana" -- only the methods and procedures. One wonders if this isn't a distinction without a difference, however, since the net effect is to stop executions in the state. Judge Sherlock reportedly claims that the problems he found could be easily fixed by the state legislature. Maybe so, but only until the next technicality is found that some judge or another will sign off on.

The next question is whether the Montana Supreme Court will embarrass itself yet again in front of the U.S. Supreme Court by upholding this ruling (assuming that Attorney General Steve Bullock appeals it -- something that could get him into hot water with his liberal donor base.) Perhaps it would be good if they did -- while Montanans may be less than interested in how the Montana Supreme Court works backward from result to argumentation in campaign finance or insurance law cases, everyone understands murder. Everyone understands that Ronald Allen Smith didn’t render his two victims “incapable of feeling pain” before giving them a gentle and “humane” death sentence of his own.

There is a proper way to remove the death penalty in Montana, and it is using the political process -- an act of legislature, a Constitutional amendment, whatever. I’ve outlined in the past why I think that this would be a good idea. But judges shouldn’t be laws unto themselves, deciding on their own to abolish the death penalty in our state.

Montana Supreme Court races and Democratic partisan connections -- a curious lack of curiosity from our press

It's Wednesday and time for a little (ostensibly nonpartisan) Montana politics.

Whether at the state level or the national level, our highest courts exert a tremendous influence on our public and private lives. Montana's Supreme Court members are chosen by direct election, and yet, voters tend to be particularly poorly informed about the choices available to them. What little makes its way out into the public consciousness tends, because of the nonpartisan nature of the campaigning, to be less than informative.

In order to get an idea of the judicial temperament and attitudes that a prospective justice will bring to the bench, one must look to peripheral and oblique cues.

In a recent article in the Billings Gazette (written originally for the Helena Independent Record,) the tedious process continues. One reads through the information in the article without gaining much in the way of enlightenment. How would each of the candidates -- Great Falls attorney Elizabeth Best, state public defender Ed Sheehy, and District Judge Laurie McKinnon (pictured above) -- tend to approach issues of jurisprudence that Montanans might be concerned about? Not much there to tell us one way or another.

No, as noted before, we must look to indirect clues.

For example, a letter supporting Elizabeth Best, filled with pleasant platitudes about upholding the Montana Constitution, recently appeared in the Gazette, but one needed to do a little looking to see that the writer is a board member of the Northern Plains Resource Council, an organization whose interests tend to coincide with those of the Democratic Party. Nothing wrong with any of that -- the point here is simply to illustrate the reading of tea-leaves that has to go on in order to figure out who to vote for.

We do learn from the article mentioned above that an organization of which GOP state Sen. Jason Priest of Red Lodge is an officer recently sent out an informational mailer, one that the MH household received, incidentally. From the contents of the mailer, one would gather that conservative types might tend to support Judge McKinnon over the other two candidates for reasons that will be discussed below. Based on the limited information available, she is indeed for now, the MH candidate of choice.

It is interesting that Sanjay Talwani's article for the Independent Record mentions that a GOP senator supports McKinnon, as well as the fact that the mailer in question criticized Sheehy for his work in defending the "Christmas Day Killer." ( Sheehy is of course quite right to defend himself on that particular charge, since a public defender by definition does that sort of thing.)

That is not the interesting point. What is interesting Talwani's failure to mention that the overwhelming thrust of the mailer was that both Elizabeth Best and Ed Sheehy have made numerous political contributions, almost all to Democratic candidates. Judge McKinnon, the mailer points out, has made no political contributions, and thus can justifiably be seen as the least partisan of the three -- something about which those who value the notion of nonpartisan judicial races might be interested.

Why, then, does the article imply a possible (indirect, no less) partisan connection, or at least affinity, between McKinnon and a Republican state senator but fail to mention at all the direct and documented Democratic partisan political connections of Best and Sheehy? It isn't like Talwani had to trust the mailer's accuracy -- political contributions are a matter of open record, and the homework isn't that hard to do. Failure to address any of this suggests an odd lack of curiosity on the part of a Lee newspaper reporter writing a piece destined to appear in most of the state's major newspapers. The question bespeaks imponderables.

Until and unless Montana laws change to a different method of choosing Supreme Court justices, Montanans will have to continue with the games of shadow-boxing, charades, and hidden agendas that characterize these elections. And for now, it appears that the person to vote for is McKinnon.

Sen. Baucus and judicial confirmations

In what MH thought would be the less-noticed post of the two put up that day, Thursday's note about Montana's Senators voting against the confirmation of Leslie Southwick to the federal bench attracted a couple of challenges, and further discussion of the issue deserves a full post.

The 9 Democratic Senators who voted for the Southwick confirmation were listed in that post, and then there was an MH assertion that Senators Tester and Baucus "apparently are to the judicial left of all of the above Democratic Senators."

Now, left vs. right is perhaps not the best terminology to use in describing judicial philosophy, but given the wars that have raged since Democrats decided with Robert Bork and Clarence Thomas that scorched-earth tactics would be the norm in preventing originalists/strict constructionists from reaching the federal bench, we feel confident that readers will know what we're talking about when we refer to a more "conservative" or "liberal" judiciary.

We can argue about what comprises "judicial activism" or originalism, etc. But the bottom line is that one of the results of the Bork wars was that concerns that had been building slowly for several decades came to a head on the right.

Political conservatives had been realizing that liberal political objectives were being achieved via the federal courts that couldn't be achieved at the ballot box. Things that in the past would have been pursued via the political consensus of a Constitutional amendment were being handed down with the help of creative judicial reinterpretations of the Constitution.

Conservatives realized that in order to counter this phenomenon of "legislating from the bench," they had to develop a relatively coherent conservative judicial philosophy and promote it. It's no big mystery that Republican presidents have, since Reagan, drawn heavily from those who espouse that general "conservative" philosophy in their judicial picks, while Democrats draw from their own stable of potential jurists with a rather different view of the law and the role of the courts.

And with very few exceptions, the votes on judicial nominations track pretty closely with other liberal/conservative voting divides. Whether a Senator votes in a generally conservative, ACU-friendly fashion or votes in a generally liberal, ADA-friendly fashion is a pretty good predictor of how that Senator will vote on a controversial judicial nomination.

So while liberal vs. conservative may not be precise judicial terminology, it is useful shorthand for summarizing the voting blocs in the U.S. Senate over the last two decades.

Which brings us to our own Democratic Senators here in Montana. The record is clear: when push comes to shove, they do not vote with the most judicially moderate segment of their party.

We can first dispense with Sen. Tester. The Southwick confirmation was the first controversial nomination on his watch that was being filibustered by Democrats. He voted with the left. So until further tests of his stances on judicial nominations come forward, that's where he stays.

Sen. Baucus's record at first blush appears to be more moderate and complex, but in reality, it is pretty simple, and it, too, is squarely on the leftward side of things:

Put simply, when a substantive shift in a more conservative direction might result on the Supreme Court, he votes with his colleagues on the left. When a conservative is replacing another conservative, he will sometimes throw a vote in the direction of the right.

Before going to Supreme Court nominees, let's recall that Sen. Baucus was notably not a member of the "Gang of 14" Senate moderates of both parties who reached a compromise that put an end to the Democrats' practice of filibustering President Bush's more conservative judicial nominees and not allowing them an up-or-down vote on the Senate floor.

As an example, Baucus voted repeatedly against cloture on the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals.

In other words, he voted to filibuster Estrada and not allow him to get a floor vote (where a 55 vote majority was waiting to confirm him.) Democratic Sens. Breaux of LA, Nelson of Nebraska, Miller of Georgia, and Nelson of Florida all voted for cloture on Estrada's nomination, so it wasn't like Sen. Baucus would have stood alone in his party.

Few observers had any doubt that the main reason why Estrada was so vehemently opposed was that this is a traditional stepping-stone to the Supreme Court, and that a Hispanic nominee to that Court would be difficult to defeat, even if he were quite conservative. So he had to be stopped before he could get to the launching pad.

Even the Gang of 14 couldn't agree on Estrada, so he ended up withdrawing his name from consideration, tired of the years-long controversy. But he is still a poster-child for that whole process of filibustering nominees, of which Sen. Baucus was a part.

Let's consider the three main controversial nominees that the Gang of 14 did, however, allow to proceed to a full floor vote:

Janice Rogers Brown -- the first African-American woman nominated to the D.C. Court of Appeals: She was good enough for Democratic Senator Nelson of Nebraska and even the most liberal members of the Republican caucus. But Sen. Baucus voted against her confirmation (she was confirmed 56-43)

Priscilla Owen to the 5th Circuit: Good enough for Democratic Sens. Landrieu of LA and Byrd of WV, and all of the liberal end of the Republican caucus except Lincoln Chafee of RI. But Sen. Baucus voted against her confirmation (she was confirmed 55-43)

William Pryor to the 11th Circuit: Good enough for Democratic Sens. Nelson of Nebraska and Salazar of Colorado, and all of the liberal-leaning Republicans except for Sens. Collins and Snowe of Maine. But Sen. Baucus voted against his confirmation (he was confirmed 53-45)

You get the idea. Any picture that Sen. Baucus might want to portray in Montana of being centrist on judicial nominations like these is wrong. No fewer than 7 Democratic Senators and all of the liberal wing of the Republican party managed to vote for at least one of these 4 nominees. But not Sen. Baucus.

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Moving on to the Supreme Court nominations:

There have been 3 Supreme Court nominees in the last 20 years who, if confirmed, would shift the Court rightward: Robert Bork, Clarence Thomas, and Samuel Alito.

Baucus voted against not just one, or two, but all three.

In addition, when President Reagan nominated William Rehnquist to be elevated from Associate Justice to Chief Justice, Sen. Baucus was one of only 33 Senators to vote against Chief Justice Rehnquist's confirmation.

When there were votes on a conservative nominee that wouldn't change the left-leaning ideological composition of the U.S. Supreme Court, because a conservative would be replacing another conservative, then he voted for the nominee: Scalia and Roberts.

The left, of course, threw a fit when Baucus voted to confirm Chief Justice John Roberts. And, to be honest, they have a legitimate gripe, on at least a couple of scores.

First, there doesn't seem to be a dime's worth of difference between Roberts and Alito -- the difference was only that Alito would shift the philosophical makeup of the Court as it existed at the time (since he was replacing Sandra Day O'Connor,) whereas the confirmation of Roberts wouldn't (since he was replacing Wm. Rehnquist.)

Sen. Baucus's decision on how to vote, in other words, doesn't seem to have been made on the qualifications or record of the nominee.

And really, those decisions don't necessarily appear to have been made based on what Baucus would consider to be an ideal philosophical makeup of the Court, either.

If they were, then after losing the Clarence Thomas nomination fight -- one which unquestionably moved the Court to the right -- one would expect that Baucus would have fought the next conservative nominee tooth and nail (i.e. John Roberts) in an attempt to move the Court back to where he thought it should be back at the time of the Thomas hearings. Someone who believed that the Thomas nomination unacceptably shifted the Court to the right should and would come out swinging when there was an opportunity to try to shift it back to the left.

As with so many of Sen. Baucus's decisions on how to vote on this or that issue, it is difficult to figure out just what the reasoning is, other than some vague sense he seems to have that "this time I should throw a bone to the right," and "this time I'll stick with the left."

That vague sense of knowing when to cast obfuscating votes has served Sen. Baucus's career well -- it's hard to argue with the political strategies of a guy poised to run away with his 6th U.S. Senate election. He has managed to keep an infuriated left from mounting a primary challenge against him, and he has managed to keep Republicans from making him a priority target for defeat.

And for those who find this sort of incomprehensible wishy-washy straddling admirable, then Sen. Baucus is your man. Just know that at some point a bill that is important to you will come up. And know that there is a good chance that whether you get his vote will depend on whether that vague sense of how to vote in his own political self-interest happens to tip in your direction on that particular day.

Some time ago, we remarked regarding another of Sen. Baucus's positions:

This vacillating approach (and it seems to be a modus operandi on a variety of issues) drives liberals as crazy as it does conservatives. This isn't middle ground, it is no-man's land.

Such an approach is all well and good for Sen. Baucus's re-election efforts and K-Street fundraising, but it makes him a sort of thing apart from the normal straight-forward way that most Montanans think and talk -- regardless of where they are on the political spectrum.

But that is a digression from the theme at hand, prompted by Sen. Baucus's recent vote against Judge Southwick's confirmation.

Montanans who understand that appointments to the federal judiciary and Supreme Court remain one of the most critical functions of the U.S. Senate need also to understand this:

There is plenty that is difficult to understand about Sen. Baucus's makes his decisions on how to vote -- but there is certainly nothing moderate, let alone conservative, about Sen. Baucus's record on judicial nominations.

Montana's Senators vote against Southwick confirmation

Both Sens. Baucus and Tester voted against confirming Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit.

This has been a long-standing battle, and one that the left-most wing of the Democratic party wanted to go down fighting over. But the final cloture vote was 62-35, breaking the Democratic filibuster, and in the end, the Southwick was confirmed easily by a vote of 59-38.

On that final vote, Southwick was found to be an acceptable judge by Democratic Senators Akaka of Hawaii, Feinstein of CA, Dorgan and Conrad of ND, Byrd of WV, Lincoln and Pryor of AR, Johnson of SD, and Nelson of Nebraska.

But not by Montana's Senators Tester and Baucus, who apparently are to the judicial left of all of the above Democratic Senators.

And consider this statement by Tom Daschle's protege Democrat Tim Johnson of SD, who also voted to confirm:

Judge Southwick possesses a high level of legal skill and is a man of solid personal and professional integrity. I voted today to confirm his nomination to the Fifth Circuit Court of Appeals.

While it is not the role of the Senate to "rubber stamp" any President's judicial nominations, it is also true that any President's choice deserves due deference. Although there is always pressure to do so, I do not have a litmus test on any issue for judicial nominees.

I do not believe that simple political ideology ought to be a deciding factor so long as the nominee's views are not significantly outside the mainstream of American legal thinking. I have concerns about Judge Southwick's rulings on some civil rights and child custody cases in the past, but I cannot accept an argument that his views are so radical that the Senate is justified in denying his confirmation.

For eight years this seat on the bench of the Fifth Circuit Court of Appeals has sat vacant. The American people deserve a justice system that not only works fairly, but also swiftly, in the manner intended by those who designed the branch of government to interpret our laws.

One wishes that Montana's Senators would have similar common-sense views on the President's judicial nominations.

One good thing: Sens. Clinton and Obama both voted against confirmation. If either of them become President, bringing those votes to their recollection will be useful in explaining to them why we are filibustering their own nominations to the court.