Judge Chris Abbott, rear, speaks with Sen. Bryce Bennett, D-Missoula, ahead of his confirmation hearing. (Arren Kimbel-Sannit/The Daily Montanan)
In a dramatic turn of events in the final day of a legislative session partly marked by a brewing fight between lawmakers and the judiciary, the Montana Senate confirmed the nomination of First Judicial Court Judge Chris Abbott, one of three judicial appointments made by former Democratic Gov. Steve Bullock that lawmakers have debated this session.
Abbott’s fate Thursday morning looked murky: With minimal discussion, the Senate Judiciary Committee voted 7-4 not to confirm the judge, who was appointed in Lewis and Clark County to fill the vacancy created by the retirement of Judge James Reynolds last year. Abbott, who has been at the Capitol throughout the week personally lobbying for his own confirmation, looked on from the audience.
But a motion before the full Senate to affirm the committee’s decision later in the day hit a snag when several Republicans joined with Democrats and killed the motion on a 25-25 vote. This left Abbott’s confirmation in limbo until Senate Democrats made a successful motion to bring the matter back to the floor, where it was subsequently approved on a 27-23 vote. Abbott will be able to serve in his position until his retention election in 2022.
“I’m pretty tired — haven’t slept a lot in the last couple days. I understand that this issue in a lot of ways has been bigger than me, so what I’m trying to do is prove myself to both the people who voted for me and the people who voted against me that I really am dedicated to upholding the rule of law, staying in my lane and not being a political judge,” Abbott said. “I view my role as interpreting the law that the Legislature gives us and nothing more, and that’s what I’ve been pounding the pavement telling people.”
Senate President Mark Blasdel, R-Kalispell, in a moment that departed from the acrimony that has characterized much of this session’s discussions around the judiciary, looked up to Abbott, seated overhead in the gallery, and congratulated him on his confirmation. Applause, though with some inconsistency, rang out.
Republicans largely did not explain their votes to confirm Abbott despite urging from some of their colleagues to vote against confirmation. However, in the same floor session that Abbott was confirmed, several Democrats voted with Republicans in order to reach the two-thirds count necessary to pass House Bill 435, a proposed constitutional amendment and priority for the majority that would shield public-sector institutions like state prisons and hospitals from coronavirus-related legal liability.
“I don’t know there’s a person who’s had a chance to meet him that doesn’t say this is a qualified person who will do important work in the First Judicial District,” said Sen. Bryce Bennett, D-Missoula, in support of Abbott’s confirmation. Among their concerns about process and precedent, Abbott’s supporters in the Legislature also warned that vacating his seat would only aggravate backlogs in the courts.
“We’d be scrambling” if the judge wasn’t able to return to the bench, Abbott said. “I know there’s been talk that the judiciary can just get substitute judges, but the capacity isn’t there.”
So-called “holdover” appointments from lame-duck governors have traditionally been confirmed by the ensuing Legislature. Because of the infrequency of legislative sessions, these judges often take the bench before being officially confirmed. But Abbott, a former public defender whose current work includes overseeing a drug treatment court in the First District, and the two other Bullock-era judges, Peter Ohman and Michele Levine, entered a confirmation process conducted by a GOP-led Legislature intent on reshaping the judicial branch after 16 years of seeing their proposals die to vetos and court orders under Democratic executives.
Part of that equation was Senate Bill 140, legislation signed by Gov. Greg Gianforte giving the executive sole authority to fill judicial vacancies. The bill, though now facing a challenge to its constitutionality in the state Supreme Court, would allow Gianforte to replace each of the three judges if their confirmation votes failed, throwing their futures into uncertainty. Judge Levine, a former Democratic lawmaker, just this week lost her bid for confirmation to a 28-22 vote on the Senate floor, while Ohman sailed through.
Sen. Terry Gauthier, R-Helena, on the floor Thursday put the Republican argument for bucking precedent and voting against the judicial confirmations succinctly:
“As a Republican, I would like to see a conservative in the court,” he said.
“I have a great deal of respect for Senator Gauthier, but respectfully I don’t agree with him that that’s how we should pick judges,” Abbott said. “A lot of folks up here all session have been expressing concerns that judges are partisan in the opposite direction, but the solution in my mind is not to go the other way.”
Also in the background is the standoff between GOP lawmakers and the state Supreme Court stemming from the SB140 litigation. Republicans have launched an inquiry into alleged judicial bias and improper lobbying after a legal filing from Attorney General Austin Knudsen on behalf of Gianforte discussed the Montana Judges Association’s practices of polling members on legislation that affects the administration of the court.
When asked about his stances on specific issues during his confirmation hearing, Abbott “refused to answer a few questions from the committee,” said Senate Judiciary Chairman Keith Regier, R-Kalispell, which he said didn’t square with the fact that Abbott engaged with the polls from MJA, per a cache of emails released to Regier by the Department of Administration. Republicans say that engagement amounts to a judge “pre-judging” legislation to come before the court. Senate Republicans also took issue with what they say proves Abbott used state time and resources to lobby for his confirmation, letting court staff and a lobbyist for the MJA know that he was lining up support for his job.
“What we find here is a series of emails where a judge uses the state Supreme Court Administrator to lobby to become confirmed on state time with state computers with state employees,” said Sen. Tom McGillvray, R-Billings.
The legislative probe into the judiciary discussed the contents of a draft report of their findings in a meeting early Thursday. The committee is funded to meet during the interim and has the authority to review public documents and hire a special counsel.
Exactly where it’s headed is hard to say. The report suggests that the panel continue its work into the interim, issue further subpoenas if necessary, and examine whether further legislation should be proposed to address lawmakers’ concerns, among others. Some members of the public who testified in support of the probe on Thursday raised the specter of potential judicial impeachments, but Sen. Greg Hertz, R-Polson, who’s leading the investigative committee, did not embrace the idea.
“I think that’s premature, we really haven’t gotten all the information that we want, so we need to continue to look at where this might take us,” Hertz said.
To cap off their bevy of judiciary bills, Republicans also passed on Thursday an amended version of Senate Bill 402, the so-called “backup” to SB140 if the courts strike it down.
The bill would roughly double the size of the Judicial Nominating Commission and increase the number of laypeople who sit on the panel. Amendments approved Thursday would also bar judicial officers from participating in any proceeding over the constitutionality of a bill if they’ve previously appeared before the legislature or another governmental entity in support or opposition of the same piece of legislation, a reference to the findings of the probe.
“This is just another one in that long litany of bad bills trying to interfere with the court,” said Sen. Diane Sands, D-Missoula.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.