Lawyers, judges push Gustafson, GOP backs Brown, in justice race analysts deem more partisan

By: - October 16, 2022 7:12 am

The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

Former Republican Gov. of Montana Marc Racicot had no memory of endorsing a judicial candidate before the Supreme Court race between Justice Ingrid Gustafson, who is running to retain her seat, and GOP-endorsed President of the Public Service Commission James Brown.


Former Gov. Racicot told the Daily Montanan for this story that he had not ever endorsed a candidate in a Montana Supreme Court race. However, Chris Tweeten, a candidate for Supreme Court in 2000 has since said that Racicot endorsed him. This story has been updated to correct the error. 

“I ruminated about it for a long time and my conscience could not be quelled,” Racicot said.

Racicot endorsed Gustafson, who has served on the high court since 2017 and prior to that served as a district court judge in Yellowstone County for 14 years. Racicot, who previously made one endorsement in 2000, praised Gustafson’s experience, noting that she took the bench at the District Court level the year Brown graduated from law school, but also was wary of the partisan influence in Brown’s campaign.

Montana’s Supreme Court races are nonpartisan, but partisan politics have saturated at least one campaign, with high-profile sitting elected Republican officials, including Gov. Greg Gianforte, U.S. Sen. Steve Daines and Attorney General Austin Knudsen, weighing in to endorse Brown.

This partisan influence comes in the wake of Republicans passing legislation in 2021 aimed at the judiciary, including a law that would have limited Supreme Court races to judicial districts rather than holding statewide elections, since deemed unconstitutional.

Gianforte and the Legislature dissolved the independent Judicial Nomination Commission.

Racicot, along with former Montana Supreme Court and district judges, lawyers and analysts, say that political influence on the courts could signal a larger threat to checks and balances in the state and to democracy.

“The founders very carefully and accurately determined that an impartial independent judiciary was absolutely essential as one of the three branches,” Racicot said.

Brown was elected to the PSC in 2020 and has run James Brown Law Office for a decade. He serves as Executive Director for the Montana Independent Bankers Association as well as the Montana Funeral Directors Association.

Brown did not respond to an emailed request for an interview last week and once reached by phone said he was on the road and unavailable to speak. Multiple calls made after were not returned as his voicemail box was full.

At an event in Butte earlier this year Brown told a crowd that the governor encouraged him to run for the seat, according to reporting from the Montana Free Press.

Although some lawyers are criticizing the political nature of Brown’s race, the candidate also has drawn praise for being “an originalist who understands judicial restraint.”

“Although he might not like some of the laws that come before him, he realizes that it is not in his job description to strike them down if they are constitutional,” said a guest piece from Americans for Prosperity-Montana, a libertarian conservative advocacy group.

Gustafson said in an interview with the Daily Montanan that Montanans shared her concerns over the future of democracy in the state.

“One of the huge red flags for democracies and deterioration of democracies, is the politicization of the judiciary,” Gustafson said. “An independent judiciary is really a cornerstone of democracy.”

Politics has seeped into the judiciary across the country and in the highest court in the U.S. Pew Research reported this year that partisans are more likely to favor U.S. Supreme Court justices nominated by presidents of their own party.

Gustafson said it was unfortunate that the national “playbook” is coming to Montana.

“It appears to me at least from some of the advertising that my opponent has some sort of political bent on the job that he would decide cases based on some sort of politics,” she said. “I don’t think that is a qualifying mark either for the job.”

Brown’s TV advertisements include voiceovers with phrases like “Joe Biden and liberal activist judges are attacking our way of life, but James Brown will fight back,” and “Joe Biden is coming for our jobs, guns, way of life, but James Brown has the backbone to follow the Constitution.”

Gustafson’s ads focus on her record of service as well as attempting to counter the narrative embedded in Brown’s ads.

“Corporate lobbyists and partisan politicians are distorting my record and spreading misinformation,” Gustafson said in an ad from September.

During her time on the bench in Yellowstone County, Gustafson started the Felony Drug Court aimed at giving offenders tools and treatment for substance abuse, as well as a child welfare project.


Former Supreme Court Justice James Nelson encouraged Montanans to look at the countries that have replaced a democratically elected government with autocracy, saying attacks on media and the courts are preambles to decline.

Nelson said in his almost 20 years on the high court that politics had never factored into Supreme Court decisions, despite some judge’s past political affiliations.

“Once you start putting partisan hacks and political flunkies on the court, that’s going to change the complexion of the court,” Nelson said.

But political analyst Jeremy Johnson said this isn’t the first time partisan influence made its way into judicial races for the high court in Montana, pointing to the 2014 race between incumbent Mike Wheat and Lawrence VanDyke, who was supported by the political fundraising group Republican State Leadership Committee.

“Conservative groups were supporting VanDyke, and then more liberal groups were supporting Wheat,” Johnson said. “It was still not as overtly partisan as this, as the support for Brown.”

Professor of Political Science at the University of Montana Robert Saldin said that Republicans in the state are frustrated that with a majority in the legislature and a Republican in the governor’s office for the first time in 16 years, the laws they pass keep getting struck down.

Saldin said there are two ways Republicans could change that dynamic.

“You can try to get different people on to the court and hope that they will rule in a different way. Or you can try to amend or entirely replace the Constitution. And it seems to me they’re thinking about and attempting to do both of those,” he said.

Lawyers in Montana have given more to Gustafson’s campaign with Election Day nearing than to Brown’s, according to data from Montana’s Commissioner of Political Practices. More than 77 attorneys donated to Gustafson’s campaign between August and September compared to four who donated to Brown. Two of the four who donated to Brown’s campaign listed living in surrounding states.

Erik Thueson, a Helena attorney, who has been practicing in the state for over two decades, penned an open letter to Brown critiquing a lack of experience on the bench but also the clients he’s chosen to represent through the years including the advocacy group Western Traditions Partnership, Inc.

Brown represented the right-wing dark money group American Tradition Partnership, then Western Traditions Partnership, as part of a lawsuit that ultimately overturned Montana’s elections spending laws. The decision from the U.S. Supreme Court was in the wake of their decision in Citizens United vs. Federal Election Commission determining corporation’s spending in political campaigns equated to free speech.

“I cannot believe an attorney who voluntarily chooses to represent a corporation with the express purpose of corrupting Montana’s government through ‘dark money’ can qualify for a seat on our Supreme Court,” Thueson wrote. “That’s his record. Would he be different on the court? Well, can you change the spots on a leopard I guess is the issue?”

In the June primary, Gustafson brought in 48% of the vote to Brown’s 36% and in the last fundraising report from August through September she raised more money, $101,000 to Brown’s $82,000, according to filings reported to Montana’s Commissioner of Political Practices.

Michael McMahon took home 16% of the vote in June, and both candidates will be vying for support from McMahon’s supporters to put them over the top in November.

AFP-Montana Director David Herbst said that the race was between candidates with different legal interpretations, saying Gustafson believed more in the Constitution as a living document and Brown was more of an originalist.

When asked about the candidates’ difference in experience, and whether that gave him pause, Herbst said he wasn’t sure it should and added that Brown is a qualified lawyer.

“As long as he sticks true to his word, that is, his interpretation will be the one that he promises voters that will be, that’s the important thing, right?” Herbst said.


In light of the recent U.S. Supreme Court decision in Dobbs vs. Jackson, Montana’s right to an abortion under the 1999 Armstrong precedent has been under a microscope, with Gianforte openly calling for it to be reconsidered.

Gustafson said that the right to privacy is unique in the Montana constitution, and the basis for Armstrong.

“Armstrong was decided directly on point and provides that reproductive rights are decisions that women can make based on their right to privacy,” she said. “I’ve spent 20 years of my career upholding our constitutional rights and applying the law and it is the law of our state at this point in time.

“In my travels across Montana, my sense is that people very much like our Constitution, and are quite proud of it, and really want justices that are willing to uphold it.”

Thueson said that individual lawyers in the state don’t have the funds to combat the trend of dark money in judicial races, pointing to a Brennan Center report from earlier this year stating that over $500 million has been spent in the 38 states, Montana among them, that hold judicial elections, with the most expensive election cycle being 2019-2020 with $100 million spent.

“But in the meantime, all we can do is fight against it,” he said.

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.