University of Montana law professor, former solicitor, nominated to Ninth Circuit Court of Appeals

By: - September 2, 2022 5:17 pm

The M on Mt. Sentinel stands above Main Hall on the University of Montana campus. (Provided by the University of Montana)

University of Montana law professor and constitutional scholar Anthony Johnstone has been nominated to the Ninth Circuit Court of Appeals, the White House announced Friday.

The news release naming U.S. President Joe Biden’s nominees described them as “extraordinarily qualified, experienced, and devoted to the rule of law and our Constitution.”

The appointment requires confirmation by the U.S. Senate.

Anthony Johnstone of the University of Montana has been nominated to the Ninth Circuit Court of Appeals. (Provided by the University of Montana)

Johnstone is the Helen and David Mason Professor of Law and an affiliated Professor of Public Administration at the Alexander Blewett III School of Law at UM where he has taught since 2011.

The announcement noted Johnstone served as solicitor for the State of Montana, as former assistant attorney general at the Montana Department of Justice, and as a litigation associate at Cravath, Swaine and Moore LLP in New York.

He also served as a clerk for Judge Sidney R. Thomas of Montana on the Ninth Circuit from 1999 to 2000.

Thomas, former chief of the Ninth Circuit, announced earlier this year that he would retire and take a “senior status” position, a semi-retirement role for judges; a supervisor for the Ninth Circuit said Friday he will do so once his replacement is confirmed.

The Ninth Circuit Court of Appeals is authorized to have 29 active judgeships and all are currently filled.

A retired UM law school faculty member who worked with Johnstone praised the nomination.

“I think Anthony will be great,” said Cynthia Ford, who worked as a law professor from 1990 to 2020. “He started his career clerking for one of the great Ninth Circuit judges, Sidney Thomas, and as solicitor general for Montana, he has actual courtroom experience.”

She also said he was an excellent colleague, and while his confirmation would be a loss for Montana, it would be a gain for the entire Ninth Circuit and country.

“He’s really proven himself as a constitutional scholar, and that’s exactly what we need on that court,” Ford said. “He’s smart. He’s intellectually curious. And he will be a really good colleague, as he was at the law school.”

Ford also said that if confirmed, Johnstone would follow in the footsteps of another esteemed Montana judge who served on the Ninth Circuit, the late James Browning. Browning served as chief judge, and the courthouse in San Francisco is named after him.

Judge Browning remembered his Montana roots and gave back to the law school, Ford said, and she anticipates Johnstone would as well.

The Missoulian noted Johnstone is the second person from Montana in two years to be nominated to the federal Appeals Court bench. It said Lawrence Van Dyke of Bozeman was nominated to the Ninth Circuit by President Donald Trump and confirmed in January 2020.

Johnstone holds a bachelor’s from Yale University and a law degree with honors from the University of Chicago Law School, according to his UM biography.

Professor Johnstone’s scholarship has been cited more than one hundred times by judges, scholars, and practitioners,” said the bio. “He has served as counsel in more than two dozen published cases in state and federal courts, including petition-stage or merit-stage briefs for six cases at the Supreme Court of the United States.”

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”

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