Bench Memos

Law & the Courts

Montana Nixes Judicial Nominating Commission

Earlier this month, Montana governor Greg Gianforte signed into law Senate Bill 140, which eliminates the state’s Judicial Nominating Commission that had limited the governor’s options to fill midterm state court vacancies. Now the governor may fill the vacancies, with approval by the state senate, without an unelected commission severely limiting his options.

Liberal critics of the new law claim that giving the governor nominating power would make the selection process partisan, but in fact the commission already was afflicted by partisanship — and the partisanship went in one direction. Commission members’ donations went almost exclusively to Democratic candidates, Lieutenant Governor Kristen Juras pointed out.

That dynamic is not unusual, and it is one reason the commission-based method of appointing judges is favored across the country by trial lawyers and far-left organizations. It tends to insulate the state bench from the will of the people as expressed in elections; heads liberals win, tails conservatives lose. Brian Fitzpatrick of Vanderbilt Law School has demonstrated in his comprehensive study of different methods of judicial selection that states with nominating commissions have judiciaries that skew significantly left, in contrast to states in which judges are picked directly by governors or by partisan elections.

Let’s hope that going forward, more states with similar distortions in their judicial-selection processes do right by their people and follow Montana’s example.

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