BILLINGS – Retired Supreme Court Justice Sandra Day O’Connor would like to see Montana judges selected based on merit, rather than through elections.
“Montana has a little work to do,” O’Connor said during a Yellowstone Area Bar Association luncheon last week. O’Connor was in Billings to sit on a special panel of the 9th U.S. Circuit Court of Appeals that heard arguments in three Montana cases.
Under the merit system she helped put in place as a state legislator in Arizona in 1974, a bipartisan citizen commission reviews and investigates applicants for judicial seats. The commission then recommends three candidates to the governor for appointment. Regular elections are held to decide if judges should be retained, thus protecting judicial impartiality while maintaining public accountability.
O’Connor is campaigning nationally for merit selection for state court judges and is the advisory chairwoman of the O’Connor Judicial Selection Initiative at the Institute for the Advancement of the American Legal System at the University of Denver.
Retired Montana Supreme Court Justice Karla Gray has begun working with the O’Connor initiative.
“I think it is a major public policy question,” Gray said. “It’s one that hasn’t been talked about for a very long time.”
Campaigning for votes and begging for money hurts the public perception of judges, Gray said. Elections may also discourage qualified and competent lawyers from seeking a Supreme Court seat because they “don’t have the foggiest notion of how to run a statewide campaign,” she said.
Montana is one of 21 states that elect their judges and is one of 13 that hold nonpartisan elections, said Craig Wilson, a political scientist at Montana State University-Billings.
Changing Montana’s system would require a constitutional amendment.
“The court is not a political branch of government. It’s a legal branch,” Gray said. “It’s so critical that the Supreme Court remains fair and impartial and not subject to political influences, including money. Justice isn’t supposed to be about money and mustn’t be for sale.”
Wilson isn’t sure the change would get much support in Montana.
“My gut level reaction is if it was voted on, on a constitutional initiative, the people of Montana would say no,” Wilson said. Elections are part of the state’s populism — “don’t tell us what to do and we want to decide who the dog catcher is,” he said.
Gray said she is interested in sending the issue to the voters through a legislative referendum.
In November, Montana voters will select a Supreme Court justice in a race between District Judge Nels Swandal, of Livingston, and Helena attorney Beth Baker. Both candidates have raised more than $40,000 for their campaigns and have received donations from attorneys and a few District Court judges.