Republican officials in Montana, who declared open season on their own judicial system earlier this year, fired a new salvo at the courts late last week. State Attorney General Austin Knudsen requested that the entire state supreme court recuse itself in a case involving a legislative subpoena of internal court documents.
In March, Governor Greg Gianforte signed into law a bill that would eliminate the state’s Judicial Nomination Commission, and allow the governor to fill judicial vacancies directly. Several weeks ago, the Republican legislature issued a subpoena to the state court administrator, seeking internal emails and other court documents (Including an internal poll) in which state trial judges allegedly expressed opinions on the constitutionality of that legislation. The court administrator asked the state supreme court to quash the subpoena, and Chief Justice Mike McGrath recused himself from that determination because he had lobbied the governor not to sign the bill. The remaining six members of the state supreme court quashed those subpoena in mid-April, pending a further hearing.
The AG now asserts that all members of the supreme court are directly conflicted from participating in any future hearing on the issue, because they would be ruling on access to their own internal documents. The justices’ continued participation in the case constitutes, in the AG’s words, “not merely the appearance of impropriety. This is actual impropriety.”
At first glance, state Republicans have laid a trap for the judiciary worthy of a cartoon villain. If the remaining justices recuse in order to avoid the appearance of impropriety, the Republicans will challenge any replacement judges on same grounds until they find judges that they feel will rule in their favor. On the other hand, if the justices decline to recuse themselves, they will face continued allegations of bias and impropriety, and will come under heavy political pressure to allow the subpoena to go forward.
Never mind that the allegations of impropriety appear to have absolutely no merit. None of the six justices on the court have spoken in any official public capacity about the subpoenas or the pending legislation. But that is beside the point: the real purpose of the recusal motion is to turn public opinion against the courts by painting the judiciary as hopelessly biased.
There is a way out of this trap, but it will require several careful steps.
First, the justices should decline to recuse themselves. There appear to be no serious reasons to believe that any justice other than the Chief Justice has spoken out, lobbied, or otherwise publicly expressed an opinion on the pending legislation. That is a sufficient standard to suggest impartiality, and indeed, the court system has already appointed a trial judge with the same squeaky-clean record on this issue to complete the seven-member court for this case.
Second, the justices — through proxies outside the court system — should attack the flawed logic of the AG’s recusal motion. If merely being part of the court system from which documents are subpoenaed is sufficient to disqualify, then any state judge, at any level, would have to recuse from hearing the case. This would leave no one to hear the case at all, and eviscerate the AG’s own chance of enforcing the subpoena.
Moreover, in the rare instance in which every eligible judge has a conflict of interest, the need of the judicial system to reach a resolution counsels that even conflicted judges should sit and decide the case. Put differently, even if the AG were correct that all judges are conflicted here, the traditional solution is to allow the six justices to hear the case anyway.
Attacking the logic of the motion through external proxies — and exposing that flawed logic as evidence of a larger, coordinated assault on the judiciary — can help the courts reframe the issue and go on the offensive. To be sure, the court system must be careful not to get tied up in partisan politics, but vocal support from external allies can counter the current message. The courts should speak out directly — albeit carefully — on this issue as well, to reiterate their independent role as a branch of state government.
Third, no matter how they rule on the merits of the subpoena, the justices will have to explain the decision with great care and precision. Quashing the subpoena permanently will certainly create a political uproar, making it all the more important that the grounds for decision are clearly stated and rooted in established law. And if the court concludes that the subpoena should go forward, its opinion must make clear that that decision, too, is grounded in law and independent judgment rather than fear of political retribution.
These are difficult moments. The courts need public legitimacy to operate successfully, and that legitimacy is under attack, seemingly without justification. Courts have been understandably reluctant to fight such attacks publicly, for fear of appearing partisan or political. They may no longer have that luxury.
The Interdependent Third Branch 