Montana Viewpoint: The push to politicize the courts

Jim Elliott

The 1^st Alabama Cavalry Regiment, United States Volunteers, is not a well-known outfit in the history of the Civil War, but it fought alongside General Sherman and served as his escort in the march from Atlanta to the Sea. The regiment was raised in Huntsville, Alabama.

They were men of the northern Alabama hill country who were loyal to the Union and refused to be drafted into the Confederate forces that controlled the state. It was common for areas of Tennessee, Alabama, and Mississippi to contain citizens of anti-Confederate, pro-Union sympathizers. Indeed, the citizens of today’s West Virginia live in a state that seceded from the Confederate state of Virginia.

I raise this issue to point out that in a political climate that seems to be unified there are always some individuals, groups of people, and even entire geographical areas that think independently from the majority. It is hard for the majority to tolerate this, let alone believe it. But it is something to be reckoned with when we come to Montana politics and especially with those Oregonians, Idahoans, Washingtonians, and yes, Californians who want to form their own state which is free from the liberally political coastal areas.

Here in Montana, we have, and have always had, enclaves of people with different political views who have had to live in political jurisdictions that they disagree with. It is tough, because while the laws are created and enforced by the majority, they have to be obeyed by everyone. This raises a point that I think is willfully ignored by majority governments and that is that the majority ought to be sensitive and accommodating, within reason, to the sensibilities of the minority among them.

Missoula County is a good place to examine. In the Legislature I represented the rural areas of western Missoula County, as well as Mineral and Sanders Counties. It seemed the further one got from downtown Missoula the less love there was for it, but at the same time, it was the trade center for the area, so, like it or not, we had to deal with it.

Now, even though we Montanans believe we are a people of free thinkers, often that means we really want everyone to be free to think exactly like we do, and so tolerance is not high on our list of ways to treat those with different viewpoints.

It has always seemed strange to me that one level of government wants to impose conformity on those governments beneath it, even though they are elected by the same people. So, what might be good for the people of the city of Missoula might not be welcomed by the entirety of Missoula County and there might be conflict between the city and county governments. And definitely, with Republican control of the state government, there is conflict of conservative state government with liberally controlled city governments. This leads to the state passing laws to restrict the abilities of the city government to enact laws that their local citizens want to see.

And once laws are passed that create conflict between those two forces, who decides? Why, the courts, of course, which are non-partisan. For now.

The current Republican idea is to bring the courts to rule in favor of the laws passed by the state government, which presently the courts often disagree with, and so rule against. By being able to put political party labels on judicial positions the majority government can rule the state as it sees fit and control the independence of the lesser governments. To this end, The Republican party in Montana is hoping to enact laws that can help elect courts that are more in tune with Republican thinking.

Probably the most important decision in the writing of the 1972 Montana Constitution was to have the delegates seated in alphabetical order rather than by political party. Who made the motion is lost to history, but the decision itself made history. It freed the delegates from the bonds of political pressure that happen when people are surrounded by others of the same political opinion. It allowed delegates to interact as individuals, rather than political robots. It allowed delegates to think and to contemplate ideas that had a diversity not found in party politics.

It would be good to return to that method today.