Darn it, summer’s over! Here comes Election Day. Early voting started Oct. 6, but I’ll still vote in person Nov. 4. I like the ritual too much – stomping down to the precinct, doing my duty, getting my sticker, and stomping home hoping my side wins. Yep, I love cheap thrills.
But one thing that never thrills me is voting in supposedly “nonpartisan” judicial races. This year, voters must choose two Supreme Court justices for the next term. No peeking, but can you name the four candidates? Do you know anything about them? Did you watch the big debate in Missoula? No? Well, I looked and couldn’t find any recordings or a transcript.
One race matches W. David Herbert against incumbent Jim Rice.
Jim Rice was a legislator, climbing to Republican majority whip in the 1993 session. Appointed to the Supreme Court by Gov. Judy Martz (R) in 2001, he’s won election twice.
As far as I can tell, Herbert flew Phantoms in Vietnam and ran for Congress in Wyoming in 1996 as a Libertarian, which he has been since 1980. So, looks like Establishment Republican versus Big-L Libertarian. Right versus righter, I guess?
The other race has been way more interesting: Challenger Lawrence VanDyke is going after incumbent Mike Wheat. Both are from Bozeman.
Wheat is a rather liberal former one-term Democratic state senator, appointed to the court in 2010 by Gov. Brian Schweitzer (D), then winning a special election later in 2010.
Before resigning to run, VanDyke worked as solicitor general for Montana Attorney General Tim Fox (R), having come up from Texas for that job. VanDyke has a history of Republican political contributions, including to Fox.
So, we’ve a choice between a liberal and a conservative, but only after a Supreme Court case that hinged on a technicality: Our state Constitution requires a justice to have “resided in the state two years immediately before taking office” and “admitted to the practice of law for at least five years prior” to the election.
However, VanDyke put his 2005 Montana license to practice on hold in 2007 while he worked for law firms in both Washington, D.C. and Texas, after a clerkship on the federal D.C. Circuit of Appeals. Upon appointment as Fox’s solicitor general, VanDyke re-activated his bar status, of course. Inactive members remain in good standing, even though they cannot actually practice law in Montana.
So, “five delegates to the 1972 Montana constitutional convention” sued. State District Judge Mike Menahan of Helena ruled VanDyke had “only been admitted to the practice of law as an active member of the State Bar for a period of slightly more than three years [emphasis added].” The Constitution says nothing about “active member of the State Bar,” does it?
Somehow, I wasn’t surprised to learn the plaintiffs (including two attorneys) are all Democratic political contributors of long standing, except for a couple token donations to “moderate” Republicans in contested primaries – not general elections, of course. Two other lawyers (also loyal Democratic donors) represented the plaintiffs.
On appeal to Montana’s Supreme Court, a bitterly-divided 4-3 majority (three justices recused themselves – Chief Justice Mike McGrath at least in part because he gave money to Wheat’s campaign) ruled VanDyke had “never been ‘un-admitted’” and therefore “satisfies the Constitution’s requirement.” VanDyke re-started his campaign in August.
All in all, the VanDyke brouhaha reeks of blatant partisan politics, the kind of legalistic power kabuki that Montana’s legal “elites” play in what is, for all practical purposes, their private sandbox.
The slimy truth is, campaign records show Montana judicial races are funded mostly by the two factions of attorneys who practice before the Court: Those making a living suing corporations with deep pockets, and those making a living defending corporations with deep pockets.
The rest of us are just along for the ride – and it’s a supreme delusion to think otherwise.
Perhaps it’s time to consider a state constitutional amendment ending direct election of our state Supreme Court justices. Let our governor nominate, and let our Senate advise – giving or withholding the informed consent our current system clearly doesn’t provide.