Who's judging whom? 

What you don't know–and can't find out–about your next Supreme Court Justice

When Montana Supreme Court Justice Terry Trieweiler announced recently that he would be resigning in order to return to private life in the middle of his current term, he left a vacant seat on the court. He also sent shockwaves through the state’s progressive Democratic backbone, as Trieweiler was generally considered to be the most “progressive,” “liberal,” or “activist” judge on the court, depending on whom you talk to. His seat will be filled by a candidate appointed by Gov. Judy Martz after she receives a recommendation from the Montana Judicial Nomination Commission. The commission has received 15 applications, and will narrow that pool down to three to five candidates for the governor’s consideration. By law, the commission must accept feedback on the applicants during a month-long public comment period, which is already underway and expires on March 21, 2003.

Randy Bishop, secretary for the Judicial Nomination Commission, and one of its seven members, explains how the recommendation process works.

“We review the application, which is designed to seek the information which…the commission has deemed valuable, and, in addition to that, public comment, of course, is valuable.”

As the commission takes public comment into account in the selection process, it is important to understand where these public comments will be coming from.

“For the most part,” Bishop says, “people who want to weigh in on this are people who do know one or more of the applicants, but I guess I can’t rule out the possibility that there’s someone who considers the matter of vital importance but doesn’t know anyone who is in the process.”

Indeed, it makes sense that an active and engaged citizenry outside of the legal community take an interest in who will be appointed to serve on the Supreme Court for the next year and a half. The Montana Supreme Court makes decisions that effect the lives of regular Montanans on a daily basis—ranging from interpretations of the Montana Constitution’s “right to a clean and healthy environment” provision to free speech issues. While the post is appointed, not elected, the comment period is clearly designed to give the public some voice in the process of selecting a new justice. So how can you, a citizen with an interest in who serves on the state’s highest court, let it be known that you like Candidate A because he has a track record of supporting gun rights, but you don’t like Candidate B because she’s made statements favoring the outlawing of abortion, for example?

Bishop’s answer: “Write to me. And if [you] want specific information, I’ll do what I can to provide it.”

The Independent followed Bishop’s advice and asked the secretary for the application materials submitted by the 15 applicants for the vacant judgeship. Bishop promptly provided the first three to four pages of each application, which detail each candidate’s employment record as well as some biographical statistics. But these pages reveal little about the candidates’ judicial philosophies or political leanings—the kind of information that could give the public some sense of how the candidates might act if appointed.

Candidate Scott Burnham, a law professor at the University of Montana for the past 22 years, says that access to the answers to the essay questions in the candidates’ applications would be most helpful.

“Judicial philosophy is important. And the application was pretty good, asking to write those essays, you know, ‘What is your view of the President?’ or ‘Who do you most admire in the judicial system?’ or ‘What do you think differentiates you from the other candidates?’”

The answers to those essay questions, Burnham says, “would give you more insight.”

Unfortunately, the Independent was denied access to said essays. Bishop acknowledged on Friday, Feb. 21 that the applications were public record, “unless the commission decides that privacy reasons override, so it’s not just black and white.”

After discussing the issue with Chairwoman of the Judicial Nomination Commission and District Judge Diane G. Barz, Bishop reported on Monday, Feb. 24 that “The decision that has been made is that under these circumstances, the demand of individual privacy exceeds the merits of public disclosure when the request is for an answer for one question out of the 63 questions that are on that form…because one question out of 63 gives an incomplete and therefore inaccurate impression about what the entire application looks like.”

Originally, the Independent had asked for the complete applications, including all sections. When told that this would be a strain on the resources of Bishop’s office, we offered to drive to Helena to do the photocopying ourselves, or, alternately, to narrow our request to one question that would be particularly insightful—which person the candidate most admires in the judicial system. Both requests were denied.

“I’m looking at 800 to 1,000 pages of documents that have been accumulated thus far with more coming in all the time, and the commission has no budget, and frankly, I don’t have the time to be producing those kinds of copies…”

Bishop did not respond to our offer to do the photo- copying ourselves.

Bishop also said that, even if he did provide the copies, “then my obligation would be to produce them for everyone who contacted me,” implying that the demand from other essay-seekers would overwhelm his office.

Bishop further noted that this reporter was the first and only person in the history of the Montana Judicial Nomination Commission to ask to see applicants’ essay answers.

When told that the Independent did not have access to the candidates’ essay answers, candidate Burnham responded, “Oh, that’s too bad, because it was very thought-provoking, actually…something like you’re doing could be helpful in getting out to the public what the candidates have to say.”

In fact, several of the candidates interviewed suggested that the Independent review their applications in order to discern “what they have to say,” clearly unconcerned that an examination of their judicial philosophy would infringe on their privacy, and most agreed that examination of the applications could aid in preparing the public for the comment period.

Bishop himself, asked about resources for public education on the candidates, had answered: “Read the Missoula Independent. That would be my first recommendation because you’re going to do an in-depth story and you’re going to have a lot of information there.”

Unfortunately, the Independent cannot provide that information when it is contained in documents to which access is denied. The Independent has, however, asked each of the candidates it could reach (seven out of the fifteen) the questions whose answers lie within those applications. Yet each of the seven candidates we contacted answered in only the vaguest terms, keenly aware that anything they say that shows the least hint of bias might be used against them in the nomination selection.

The answers of candidate Jeffrey Renz, a law professor at the University of Montana, offer a fair representation of the answers the Independent received when asking questions such as “Would you carry out Justice Treiweiler’s progressive tradition or pursue a different course?” or “Do you consider yourself conservative, liberal or moderate?”

Renz replied, “Justice Renz would carry out Justice Renz’s traditions” to the first question and “That would depend on the issue” to the latter.

Of course they have to answer that way: admitting to bias in either direction would be grounds for disqualification.

Still, several candidates expressed a desire to allow the public to “get to know” them. One such, Timothy Fox, a private practitioner in Helena and former division administrator with the Montana Department of Environmental Quality, responded to questioning by saying, “Have you had a chance to look at the applications? I think if you look in there you’d probably get your answer in the candid answers that I’ve given in the application. I would encourage you to get the entire application. I’m told that they’re public documents under the right-to-know provisions of the Constitution. I bet that you’re entitled to them.”

As of press time, the Independent had notified Bishop that the paper was considering filing a Freedom of Information Act request to view the applications. In response, Bishop said that he was willing to work with the Independent to reopen the commission’s discussion on the possibility of making the applications available.

But the battle for access to the applications may matter more in principle than in affecting who is actually nominated. In a phone interview with Trieweiler, the retiring justice said that he did not think public comment would have much impact on who becomes the new Supreme Court justice for the next year and a half.

“I think that, to the extent that Republican insiders want to tell her [Martz] who to appoint, that might matter, but they don’t need a thirty day comment period for that.”

Trieweiler said that, in theory, public comment is supposed to affect the nomination, but he does not believe that it does “in reality.”

Perhaps freer to speak his mind now that he is departing, Trieweiler expresses reservations about candidates who claim to hold no political stake in their appointment.

“It is non-partisan, but that’s not the same as being non-political,” Trieweiler says. “For the people who say they have no agenda, the question is, ‘Then why do they want to be here?’ If you don’t have some kind of agenda, then why don’t you stay in the job you have? I mean, you could put a computer in your seat and enter the cases and have the computer spit out a result. This job is very political and philosophical, and I haven’t been up here with anyone, whether they call themselves conservative, moderate or liberal, whose own personal value system isn’t reflected in how they make decisions. I think it’s disingenuous when people campaign for the court under the pretext that they have no value system which would affect their decision-making.”

Trieweiler says that he was honest about his own “agenda,” that he openly acknowledged that his background would lead him to represent consumers, working people and the environment.

In an odd admission, Trieweiler acknowledges that “there are several candidates that would be better than others, but I don’t want to jeopardize their chances by identifying them,” implying that his endorsement of a candidate with values similar to his own would hurt that candidate in a process where the applicants are expected not to have—or to pretend not to have—agendas.

As Trieweiler prepares to enter private life, and possibly to begin work on the 2004 presidential campaign of Sen. John Edwards (D-N.C.), he speculates on who the governor will appoint to fill his seat.

“I think she’ll try to find the person who she thinks most clearly reflects the partisan, Republican approach to the judiciary…I think that the Republicans, while they always talk about an impartial judiciary, don’t really believe in it. What they really want are people who will vote their political agenda.”

As for the Democrats, says Trieweiler, they simply don’t understand the importance of the court.

“I’ve always been bugged by the fact that the Republicans adopt a candidate in all the judicial races and get behind them as if they are the Republican candidate and the Democrats never get close to a judicial campaign. So I’m not sure the Democrats are too in touch with the importance of it. I mean, they complain if you leave, but they don’t do a lot to help people get there.”

These days, a lot of Democrats will likely be complaining as the tenure of the justice most in line with their traditional platform comes to an end. It remains to be seen if anyone, aside from the Independent, will complain about being kept in the dark as to who these new applicants truly are, and just who and what they might actually represent.

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