Letter to the Montana Republican legislative leaders and party Executive Committee members

It’s not that the Constitution does not contemplate dynamic tension precipitated by differences of view. It is that it also, simultaneously, calls for self-restraint, sincere consideration of contrary views, a willingness to compromise, a mutual promise to serve the common good, opposition without oppression, rivalry without vilification, and disagreement without contempt. These are the values infused into every line and verse of the Constitution. They are an inseparable component of the Rule of Law, which the Republican Platform specifically claims to embrace.

Repudiation of these constitutional virtues will inevitably weaken the adhesive that holds us together, inexorably lead to civil disorder and threaten the dissolution of our union. You need only look to the Jan. 6, 2021 insurrection to see how that movie ends.

These values compose the foundation stones upon which the republic rests. Without their guiding light, freedom cannot long endure. Arrogantly comfortable with your Republican “super majority,” you do not appear to even remotely comprehend the risk of your frontal assault on the Constitution, nor to remember that as the world turns, we will all eventually end up reaping what you now sow.

Increasing numbers of Montanans of every political stripe, have growing and grave concerns with the party’s absolutist ideology, its unsparing demands of allegiance, its relentless pursuit of power and its reckless compulsion to disassemble the Constitution with the intent of controlling all three branches of government.

It is stated in your Republican Party Platform that the Constitution is “a unique and binding compact.” And, as a citizen or elected leader, you have promised “to support and defend” and to “bear true faith and allegiance” to the constitution … “freely without any…mental reservation or purpose of evasion.” Yet your actions to invade the Constitution mock the solemn oath you have taken.

In November 2021, a Republican member of the Montana Legislature at the time, now the party treasurer and member of the Executive Committee, opined that “we need to throw out Montana’s socialist rag of a constitution.” It was noted then that neither Republican elected officials, nor party members whose offices were contacted for comment, provided any response to media inquiries. Is that, then, the window through which your efforts to massively redesign the judicial branch should be judged?

You have recently experienced the resignation of a twice-elected and promising young Republican legislator because of the party’s coercive efforts to influence the exercise of her discretion and to do what she thought was right. You have also recently censured two Republican members of the Legislature for not voting the way you deemed appropriate and you have recently witnessed the defection of a growing number of Republicans in your caucus, and across the state, who feel bound to their conscience and their constitution more than their party.

However, your most egregious failure of leadership is the unrelenting legislative encroachment of the judicial branch of government strictly forbidden by Article III, Section 1 of the Constitution you have sworn to protect and defend.

It’s all a part of a quiet, multi-year national effort initiated before the 2021 Legislature convened. By the end of that session, at least 26 states had introduced at least 93 bills that would politicize or compromise the independence of state courts. Montana was one of those states.

In 2021, there were several bills focused on the Judicial Standards Commission; another allowing a judge to be impeached for not following the Legislature’s preferred method of statutory interpretation; another allowing citizens to initiate investigations of judges; another to elect Supreme Court justices in gerrymandered districts rather than statewide; and another giving the governor the power to directly fill interim judge and justice vacancies without a vetting of the candidates by the Judicial Nominating Commission. In all, there were 18 bills introduced by Republicans in 2021 focused upon emasculating or remaking the judiciary in Montana.

This legislative session, Republicans have submitted 61 constitutional amendment proposals, nine of which concentrate on the judiciary, and one of which gives the governor the power to appoint Supreme Court justices in substitution of election by the people. In addition, there are another 42 bill drafts that specifically focus on the judicial branch, including one requiring Supreme Court justices to run for office on a partisan ballot; another to enable the Legislature to appoint and confirm justices and district judges; another to decrease the size of the Supreme Court; and another to create a judicial inquiry commission to investigate citizen complaints against judges.

And the list goes on and on. All of it designed to diminish and circumscribe the independence of the judiciary, the importance of which President Reagan noted on Constitution Day in 1987: “…the genius of our constitutional system is its recognition that no one branch of government alone could be relied on to preserve our freedoms. The great safeguard of our liberty is the totality of the constitutional system, with no one part getting the upper hand. That is why the judiciary must be independent.”

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Marc Racicot

Former Republican governor of Montana