Supreme Court candidates dodge, and leverage, political rhetoric

by MARA SILVERS Montana Free Press
| October 18, 2024 7:00 AM

Judicial forums are not typically known for their entertainment. But during an hour of questions and answers at a late September forum in Great Falls, hosted by the Montana Farmers Union, the four nonpartisan candidates for the open seats on the Montana Supreme Court successfully conveyed that their races are far from boring.

Two sitting state district court judges, Katherine Bidegaray of Sidney and Dan Wilson of Kalispell, are vying for the associate justice position currently held by Justice Dirk Sandefur. In the other race, Broadwater County Attorney Cory Swanson and former federal magistrate Jeremiah “Jerry” Lynch, a Missoula resident raised in Butte, are facing off to replace retiring Chief Justice Mike McGrath.

None of the candidates are allowed to run as Republicans or Democrats. But that hasn’t stopped political parties and special interest groups from saturating the campaign with mailers and online advertisements, as has become a tradition in Montana judicial races.

Speaking before the audience gathered in a conference room at the Great Falls International Airport, all the candidates acknowledged the charged political environment surrounding their races but stressed their commitment to judicial independence.

“We can’t control who supports us, really, or what they do,” Bidegaray said. “We only have the ability to control ourselves.”

But while Bidegaray and her opponent, Wilson, have often tried to dispel the heated political rhetoric surrounding the judicial races, Swanson and Lynch have used it to power attacks against one another and defend their own reputations.

“This race became partisan because the Democratic Party made it partisan,” said Swanson, referencing a national Democratic political action group that pledged to spend millions in states with competitive Supreme Court races. “Well, they’re not spending the money for me.”

‘THE VOTERS CAN MAKE OF IT WHAT THEY WILL’

During the Great Falls event and other judicial forums, Bidegaray and Wilson have tried to appeal to voters by highlighting their respective legal experience and commitments to fair and impartial rulings.

Both candidates for associate justice have spent decades as lawyers practicing in diverse settings and, most recently, as district court judges adjudicating cases ranging from child welfare to criminal violations to constitutional conflicts.

Bidgaray has been elected to her district court seat, which adjudicates issues from Dawson, Prairie, McCone, Richland and Wibaux counties, four times. Previously, she spent a decade in private practice. Wilson has been a district court judge in Flathead County since 2017 and spent the six years prior as a justice of the peace. Wilson worked as a lawyer beginning in the 1990s, first as a prosecutor and later in private practice, where his cases included criminal defense.

Each candidate has occasionally made statewide headlines for high-profile cases. Wilson gained name recognition during the first year of the COVID pandemic after he ruled against the administration of former Democratic Gov. Steve Bullock when it tried to bring a restraining order against certain businesses over masking requirements.

More recently, Bidegaray ruled that the state Department of Environmental Quality erred in issuing a permit for a company’s construction of the Black Butte Mine, a copper operation that could impact a tributary that feeds into the Smith River. The Montana Supreme Court later overturned that ruling.

Recent waves of political advertisements and mailers have tried to distill each judge into a liberal or conservative frame, in part drawing on those notable rulings. The American Civil Liberties Union and Wild Montana Voter Fund have lined up behind Bidegaray, portraying her as a candidate who will uphold Montana’s longstanding protections for abortion access and public lands. Alternatively, the Montana Republican State Central Committee and many elected Republicans are backing Wilson, praising him as a restrained judicial conservative with a tough-on-crime record.

In Great Falls, Bidegaray said the groups endorsing her might be reacting to her repeated pledges to defend the individual rights outlined in the Montana Constitution. Those rights, as Bidegaray has mentioned, include the right to privacy, the well-known legal foundation for Montana’s access to abortion.

“I have consistently and repeatedly said that I am willing to do my part to uphold the Montana Constitution,” Bidegaray said. “I have taken hard cases during my tenure as a district court judge … and have held firm to protecting people’s rights.”

Wilson, meanwhile, told the audience that he does not see the state Constitution as a liberal or conservative document but rather as a clear set of instructions for judges to follow that he has no desire to manipulate.

Both candidates insisted that the political narratives about their campaigns should not undermine their credibility as nonpartisan judicial figures. In response to a question about the support he’s received from the Montana Republican State Central Committee, Wilson said, “The voters can make of it what they will.”

“The message that I have been delivering from the time I started my campaign until the present time hasn’t wavered. I am for the rule of law, for judges to follow it humbly and obediently, and don’t legislate from the bench,” Wilson said. “To the extent I am supported by any group or party, I’m grateful for the support, but it’s not going to change how I approach the campaign or is not going to cause me, one bit, to change my judicial philosophy or approach.”

‘A POLITICAL ATTACK’

The contest for chief justice between Lynch and Swanson has some parallels to the race for associate justice. Progressive interest groups are backing Lynch. The Republican Party is supporting Swanson.

Other key players include Montanans for Fair Judiciary, a group affiliated with prominent conservative strategist Jake Eaton, which is backing Swanson and Wilson. Another political committee, Montanans For Fair and Impartial Courts, linked to the Montana Trial Lawyers Association, is supporting Bidegaray and Lynch.

But compared to the mostly stoic rhetoric in the race for the associate justice position, the dynamic between Lynch and Swanson is boiling.

Part of the dynamic comes from the candidates’ differing professional experiences. Lynch touts his roughly 40 years as a federal court clerk, trial attorney and federal magistrate as evidence of his passion for the law and interest in defending the judiciary. Swanson, alternatively, has a shorter and more diverse background. He started in private practice in 2006 and spent three years as a registered lobbyist for a variety of private interest groups. He spent two years as a deputy attorney general under former Republican Attorney General Tim Fox and was elected Broadwater County attorney in 2014.

Perhaps because of his long track record in federal courts, Lynch doesn’t shy away from the third-party depictions of him as a staunch defender of constitutional liberties. As chief justice, he has passionately said he would protect individuals from groups — including the government — that seek to infringe upon their rights. Among the many spelled out in the Montana Constitution, Lynch often points to rights that are linked to ongoing policy disputes: the right to public education, the right to vote, the right to a clean and healthful environment and the right to privacy.

Lynch has also promised to fight to preserve the judiciary’s autonomy, criticizing the Republican-led Legislature’s efforts to change laws about the judiciary and launch pronounced investigations into the Montana Supreme Court.

“They are a fair court. They decide issues according to the law. And the attack on that court right now is a political attack. It’s that simple,” Lynch said during the Great Falls forum. “As your chief justice … I will stand toe-to-toe to make sure the independence of the judiciary stands.”

As he pushes his vision of a doggedly independent and defensive judiciary, Lynch has attacked Swanson with allegations that the current county attorney is too closely tied to conservative interest groups and the Republican Party.

Lynch points to a 2008 case in which Swanson represented Eaton, then the director of the state GOP, after the party challenged roughly 6,000 voter registrations in several Democratic-leaning counties weeks before the November election. Lynch also publicly highlights that Swanson’s judicial campaign is managed by lobbyist and former GOP official Chuck Denowh.

“I think it’s fair to say he’s a political partisan and a hyper-partisan,” Lynch said about Swanson during an August podcast with Whitefish business owner Ed Docter.

At other points in the interview, Lynch justified his strong critique of his opponent by pointing to the attacks Swanson’s supporters have made against him. “I entered this race thinking I would be at a high level — and I do want to be that because I respect the judiciary so much,” Lynch said. “However, I’m also from Butte. When someone punches me in the mouth, I’m going to punch back.”

‘JUDICIAL TEMPERMENT’

Butte heritage aside, Swanson has appeared to abide by the same rule of thumb. As the two candidates appear together at forums around Montana, Swanson has accused Lynch of complimenting Democrats and aligning with progressive causes.

“My opponent recently went on a podcast and endorsed Jon Tester and Tim Walz. And I don’t think we should be doing that,” Swanson said at the Great Falls forum, referring to Lynch’s podcast appearance with Docter. “So my goal is to keep this nonpartisan. And if I get elected, I will operate as a nonpartisan justice. Period.”

Lynch wagged his finger and shook his head in disagreement. In the podcast, Lynch did not explicitly endorse either Montana’s Democratic U.S. senator or the Democratic Minnesota governor currently running to be vice president alongside Democratic nominee Kamala Harris. However, the former magistrate called Tester “a magnificent human being” and said that he appreciated Walz’s down-to-earth demeanor, opining that those types of individuals “are the people that should be in the United States Senate.” Tester is running for reelection against Republican challenger Tim Sheehy.

The state code of judicial conduct prohibits Montana judges and judicial candidates from publicly endorsing or opposing any partisan or independent candidate for public office. Swanson has not specifically mentioned that prohibition in recent public appearances, instead opting to generally criticize Lynch’s disposition and tout his own ability to navigate political tensions — including the ongoing feud between the judiciary and Republican leadership in the Legislature.

“There is a political controversy in this state that has to be navigated with wisdom, with dexterity and with humility and with some diplomacy, and then occasionally with some firmness. That’s called judicial temperament,” Swanson said. “A certain level of that leadership and temperament must be on display at all times.”

At a Bozeman forum hosted by the Gallatin County Bar Association in late September, the day after the Great Falls event, Lynch again sought to leverage Swanson’s involvement with the GOP voter registration challenge from 2008. He accused Swanson of participating in voter suppression, an effort that Lynch suggested should be disqualifying for someone running for the Supreme Court.

Swanson reflected on the case but quickly pivoted, questioning the ethical implications of walking away from a client who did something wrong.

“I represented an entity that did something stupid. And the rules of ethics, as an attorney, tell you that when your client does something stupid, you don’t just run away from them and abandon them. You say, ‘Okay, I’m going to represent you despite the fact that you did something stupid and help you work your way through that.’ And that’s what I did,” Swanson said.

Later, Swanson returned to the topic, criticizing Lynch for using the incident to malign his reputation. Speaking to a roomful of lawyers and pre-law students, he asked whether that type of judgment is what attorneys want from a justice when they’re representing a challenging client. “Think about that,” Swanson said.

The county attorney has used other public comments to cast Lynch as unprofessional. Swanson has taken issue with Lynch’s repeated pledges to defend the Montana Supreme Court’s 25-year-old precedent in Armstrong v. State, the unanimous decision that found that the state Constitution protected abortion access through the right to privacy. Lynch has said that respecting precedent is not the same as pre-judging cases that may come before the court, but rather a display of respect for the weight of past rulings.

Swanson doesn’t buy it.

“Those are dog whistles. They are intentionally crafted statements to tell liberal groups how you’re going to vote,” he told Montana Free Press shortly before the Bozeman forum. “You can’t do that.”

In Great Falls, Swanson and the other candidates were explicitly asked about abortion rights and the initiative to explicitly include those protections in the Montana Constitution, CI-128. Swanson again spoke against judges and candidates forecasting their stances on future issues. He likened his approach to the tradition among some top-ranking military officials not to vote in presidential races.

“I don’t go to quite that extreme, but I intend to abstain from voting on all of these policy issues because I don’t want to, even internally in my own soul, have a policy preference that then I might have to deal with as a judge,” Swanson said. If the initiative passes and is the basis of future litigation, Swanson continued, the justices should “take our own personal view and ideology out of it and decide that case with a methodology that is fair and impartial.”

THE ROAD TILL NOVEMBER

At this point, third-party groups — including the Montana Republican State Central Committee and the American Civil Liberties Union — have collectively invested millions in the races for the two Supreme Court seats, mostly on direct mailers and online advertisements.

The Montana Values Action Fund, helmed by liberal powerbroker Mary Stranahan, has donated hundreds of thousands to Montanans for Fair and Impartial Courts, Montanans for Liberty and Justice and Montana Senior Vote Action Fund — all groups advocating for Lynch and Bidegaray.

In August, the national group Fair Courts America made a $200,000 donation to Montana Judicial Accountability Initiative, another political action committee tied to Eaton, its largest received donation this cycle. Fair Courts America, a federal PAC, is primarily funded by Richard Uihlein, the shipping magnate and billionaire supporter of conservative political causes. Since that donation, Montana Judicial Accountability Initiative has transferred $35,000 to Eaton’s other group, Montanans for Fair Judiciary, one of the entities backing Swanson and Wilson.

Other interest group spending is more difficult to track. The national money Swanson referenced, from the National Democratic Redistricting Committee and Planned Parenthood Votes, has not made a clear mark on Montana’s elections, but could very well be circulating after transfers between other political committees.

The candidates themselves continue to eschew direct affiliation with those political undercurrents and speak to voters about their individual judicial philosophies in forums around the state.

One of the next events with all four contenders is scheduled for 6 p.m., Oct. 9 in Billings, hosted by the Montana Farm Bureau at the Billings Hotel and Convention Center.

Absentee ballots are scheduled to go out on Oct. 11. The election is Tuesday, Nov. 5.