The voters can speak just fine for themselves, Mr. Knudsen

Attorney general mistakenly believes voters sent him to office to destroy the judiciary

June 17, 2021 4:04 am

Attorney General Austin Knudsen. (Provided by the Montana Attorney General’s Office for the Daily Montanan.)

In a rather extraordinary interview with the Montana Free Press, state Attorney General Austin Knudsen said that he wasn’t elected to please the Helena legal elites.

That makes me question whether he’s ever been to Helena.

“I guess I’m more concerned about what the voters of Montana think than, you know, a handful of former DOJ lawyers,” he told Mara Silvers of the Free Press.

We’ll skip — if it’s even possible in this conversation — over the fact that the state government agency, which he oversees, is named the Department of Justice.

If there’s one historical irony in the now-frequent attacks on all of our bedrock institutions, like the court system or the military or even Congress itself, it’s that many of the same people who are undermining these institutions are the ones who solemnly invoke the Founding Fathers of this nation and the supposed divine inspiration that caused them to create these same systems. But a careful reading of the history of our founding reveals a distrust of individuals and their political motivations and aspirations, and so the founders’ genius was vesting the power in institutions that could span the course of time and withstand the corrosive effects of ego-driven individuals.

Nowhere is this more apparent than in Knudsen’s case. Little in the interview with Silvers and even fewer of his actions suggest any abiding love for the same institutions that helped make Knudsen a Montana name. After all, the former Speaker of the House is now the Attorney General. He’s been the leader of two of these time-honored institutions.

Knudsen’s career and his profession have been courtesy of the same system he seems to revile and hold in contempt. There’s that word again — contempt. That’s the same word that Supreme Court Justice (and, ahem, conservative) Jim Rice used in a concurring decision on Senate Bill 140. He said he contemplated holding the Attorney General in “contempt,” but that would have required Knudsen to understand the gravity of the words Rice was writing.

About Senate Bill 140

Senate Bill 140 changed the way Montana appoints judges. Previously, a judicial nomination commission forwarded names of screened candidates to the governor for selection. In 2021, Montana lawmakers changed the process, allowing for the governor to directly appoint judges.

This sparked a bitter legal dispute among all branches of the government, when the executive branch, led by Attorney General Austin Knudsen, said it would represent the legislature against the judiciary. Ultimately, the high court said the law fit the constitutional framework, even while making no comment on the quality of the new process.

However, the legal battle drew scorn from both sides as Knudsen penned several caustic letters to the Supreme Court while Justice Jim Rice issued a concurring opinion saying future lawsuits from Knudsen and the legislature should be considered with some trepidation.

It’s clear from the remarks in Knudsen’s interview, the attorney general still doesn’t get it. Even worse: He does and just doesn’t care.

But Knudsen not getting the legal system as Montana’s top legal authority is like being the president of a bank, but putting his cash in a coffee can under the mattress.

“Montanans had the chance to vote for the ‘status quo’ a couple different times in the AG’s race. They didn’t do it,” Knudsen said. “Overwhelmingly, I got vote for. I’m an aggressive guy. I think people knew what they were voting for with me.”

Knudsen’s version of “status quo” and mine must be different. Because, in a state legislature dominated for the past decade-plus by Republicans, it doesn’t get more status quo than a Republican lawyer from Eastern Montana getting voted in as the Attorney General.

Not only is Knudsen seemingly hell-bent on antagonizing or even chipping away at the same institutions that helped him rise to power, he also drinks out of the same punchbowl that most Republicans have guzzled from, when interpreting the 2020 election results.

No reasonable assessment of the election could argue that Republicans didn’t drub the Democrats. It was a routing up and down the ticket. Montana voted Republican and wanted Republicans. There is nothing unseemly about the election results.

However, to conflate an election win as an absolute mandate for whatever extreme policy Knudsen covets is specious.

In coverage running up to the election, no one was talking about how easy it is to get an abortion; no one was talking about how terrible our courts were; no one was contemplating the impending invasion of all the transgender athletes flooding women’s sports; and no few could imagine subpoenaing the entire Supreme Court. Yet all of those issues were apparently voter-mandated.

The truth may be closer to this: The election is a smokescreen and flimsy excuse to enact solutions where there are no problems. In reality, politicians can’t point to outrage about Montana’s courts because we’re blessed by having a pretty fair and efficient system. When Knudsen entered the fray on critical race theory, he expounded on the possible and hypothetical legal violations while his counterpart, Superintendent of Public Instruction Elsie Arntzen, admitted they couldn’t find one problematic example in the state.

Arguing that the voters somehow wanted this armada of dubious legislation is convenient because it sounds good and few will argue with it, because somewhere in this big ol’ state there are probably a handful of residents who may feel similarly. But saying a few voters may agree and saying the majority are insisting upon it vis-a-vis a mandate are two different things.

Instead, the “mandate excuse” is nothing more than a cover for legislation or actions that enjoy little support from the average Montanan, and can’t be explained in terms of good policy.

In short, Knudsen and other Republicans are supporting questionable and possibly unconstitutional legislation in the name of the voters, who never quite got around to articulating these sudden concerns lawmakers and politicians believe are now mandates.

Instead, I have a better, simpler, and more succinct mandate for them: Stop putting words in our mouths.

We can speak just fine for ourselves.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.