Guest Essay By James C. Nelson
Montana Supreme Court Justice (Ret.)
Reposted from Flathead Memo by permission of James Conner and Judge Nelson
Approved and recommended by Dr. Ed
There can be no clearer evidence of Montana’s spiral into fascism than the supermajority/Freedom Caucus jihad against our State’s fair, independent and impartial judiciary.
Make no mistake, this jihad is nothing less than a power-grab, designed to destroy the third, co-equal branch of government, along with the separation of powers and system of checks and balances that have served our State from its founding.
Indeed, our federal Constitution is grounded in these same democratic principles — three co-equal branches of government, with separate powers, designed to check the excesses of the executive and legislative (the political) branches.
- SB 200 allows candidates for nonpartisan judicial races to declare a partisan affiliation and have that affiliation appear on the ballot. (Tabled in Committee)
- SB 230, which has been passed by the Senate Judiciary Committee, gives the Clerk of the Supreme Court (an elected partisan office) supervisory control over the Supreme Courts administrator. The latter is a hired, administrative position that assists the court in its budgeting, payroll and other internal functions of how the Court is run. (2nd Reading Indefinitely Postponed)
And here’s the frosting on the cake: LC 2232 proposes an amendment to Montana’s Constitution that gives power to the legislature to appoint Supreme Court Justices and District Court judges.
Here are the reasons why the supermajority/Freedom Caucus demands this unprecedented power:
- the current system of electing judges is inherently difficult for the best candidate to rise to the surface because voters do not have information on a judge’s performance and how the judge interprets the law; and
- this situation creates a circumstance of uninformed voting; and
- the purpose of providing a more effective nonpartisan appointment and confirmation process, the People’s House is best representative of the voters of Montana and will nominate judges in a manner that preserves the people’s voice; and
- the Senate is the body that is best representative of Montana as a whole and is already equipped to vet the judges during a confirmation process.
Each of the reasons is patently false and misleading.
In fact, Montana’s historical system of electing non-partisan jurists ensures that the best candidates, qualified by training, experience and character rise to the surface.
Indeed, over the last decade the GOP has attempted to place political hacks and partisan flunkies into the judiciary. But, not surprisingly, the voters (who apparently are too stupid and uninformed to learn about the qualifications of the candidates they are voting for) have rejected the GOP’s efforts.
Nonetheless, to save these ignorant electors from their uninformed decisions, the People’s House will nominate their slate of judicial candidates to the judiciary, with that slate to be confirmed by the best equipped body for that duty, the Senate.
Let’s make one thing perfectly clear, neither the People’s House nor the Senate represent We the People. Indeed, both legislative houses, presently dominated by the right-wing, reactionary Freedom Cause types, represent only themselves and their base — of the party, by the party, and for the party. Nothing less.
Keep in mind that when fascists take over a country or, in this case, a state, the first thing to go, besides a free press, is a fair, independent and impartial judiciary.
Why? Because fascists and authoritarians require an uninformed electorate, so they can peddle their propaganda, lies, and misinformation with impunity. And they must eliminate the Courts because it is the judiciary that fairly adjudicates disputes with the government and checks the abuses of power of the tyranny of the majority or, as in Montana, the supermajority/Freedom Caucus.
When the judicial branch is the lapdog of the political branches, we don’t have democracy. We have tyranny.