Judge Michele Reinhart Levine of Cascade County speaks at her confirmation hearing before the Montana Senate Judiciary Committee on March 24, 2021. (Montana Public Access Network)
The Senate Judiciary took three different paths with three different judges on Friday morning, all holdover appointments from former Gov. Steve Bullock, a Democrat.
The judges’ confirmation, historically bipartisan and procedural, has been mired in partisanship as the Legislature has passed or is moving bills to reshape the judiciary. The GOP dominates the House and the Senate, and for the first time in 16 years, has the governor’s seat as well, opening the opportunity for what many Republican leaders have viewed as a mandate for change.
Three judges, Peter Ohman of Gallatin County, Michele Reinhart Levine of Cascade County, and Christopher Abbott were all appointed through the judicial nomination commission and Bullock. The trio have been working in their respective judicial districts for about six months, and need Senate confirmation to continue.
On Friday, the Senate Judiciary voted against recommending Levine, while supporting Ohman unanimously. Abbott’s fate is still uncertain, even after Sen. Diane Sands, D-Missoula, questioned Judiciary Chairman Keith Regier, R-Kalispell.
“When will be taking action on Judge Abbott?” Sands asked.
“Not today,” Regier responded.
“Next week, I hope,” Sands said.
“Not today,” Regier repeated.
Ohman received the full committee’s support, and an endorsement for his work at the public defender’s office and working with the judiciary committee previously.
However, past legislative experience was the reason every Republican on the Senate Judiciary voted against Levine, as GOP members criticized her background, political donations and what they felt were her inherent biases.
“I can see that Levine is a hard-working, efficient person. I also believe she has strong inherent biases,” said Sen. Tom McGillvray, R-Billings. “When she was a Democratic legislator, she was not a centrist. She was on the hard left of the party.”
McGillvray ticked off Levine’s record of working with groups such as the Northern Plains Resource Council, the Montana Environmental Information Center and Carol’s List.
“When one has those inherent biases, there’s a pressure to appease,” McGillvray said.
Sands pushed back, pointing out that previous legislatures had also supported Supreme Court Justice Jim Rice, who was conservative.
“She was partisan, but I think she’s made the commitment to stay in a different lane on the bench,” Sands said.
However, Regier said that in 2020, Levine had donated to 17 different political candidates, all of them Democrat.
Sen. Bryce Bennett, D-Missoula, pointed out that Cascade County has had high judge turnover and is already an estimated 2.5 judges short of what is recommended.
“What impresses me is the amount of support from the community,” Bennett said. “People who know best are the people who have worked with her in her courtroom, and she’s got support from across the political spectrum.
“The court in Cascade County needs stability. Even people who said they didn’t initially support her and supported someone else came to testify for her.”
Cascade County has had eight different judges in eight years.
Regier pushed back, saying in his years on the Senate Judiciary that he’s never heard one opponent for any judicial confirmation. Yet, lawyers and others lobby him behind the scenes, afraid to speak out against a judge.
“There has never been an opponent,” Regier said. “Lawyers don’t want to speak out. Do judges hold grudges? Do they hold biases? I don’t know. But I think to think they don’t is naïve. I don’t think that’s realistic.”
Sands said the move to dash Levine’s nomination was done as part of a larger Republican-led attack on the judiciary to undermine faith in the judges and process and “replace them with conservative judges more in line with the governor.”
“The previous governor-appointed highly partisan judges, and this governor will go through and thoroughly vet candidates,” McGillvray said. “We don’t want partisan judges on the right, either.”
The committee voted along party lines to not recommend Levine, 7-4. However, the nomination will still head to the full Senate floor. Levine is the first judge since the state’s current Constitution was passed in 1972 that faces a possible rejection in the Senate.
SB140 in the background
The judicial confirmation hearings are set against the backdrop of a fight that has involved all three branches of state government. The Legislature passed Senate Bill 140, which would have abolished the judicial nominating commission in favor of the governor directly appointing judges.
The day after it was signed, the law was challenged, which set up a fight pitting lawmakers and the executive branch on one side and the judiciary on the other. While the law was being challenged, Regier issued a subpoena for Courts Administrator Beth McLaughlin’s email and had the executive branch turn over the email. That process has spun off a separate Special Select Committee to investigate the judiciary while the Supreme Court will ultimately decide the fate of SB140 and what emails can be subpoenaed.
If any of the three judges are not confirmed, they would immediately be finished serving as a judge, leaving hundreds, if not thousands, of cases in limbo. And, with the matter of how judges must be appointed unsettled, it could create a vacancy for district courts for an unknown amount of time.
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