Lynch, Swanson tango to be new chief justice of Montana Supreme Court

Montanans next month will elect a new chief justice of the state Supreme Court, the first new jurist to hold the office in 15 years.

Cory Swanson and Jeremiah Lynch have been jockeying for the Supreme Court's top office for roughly a year now. Lynch was the longest serving federal magistrate in Montana when he retired in 2019, while Swanson has been the Broadwater County attorney since 2014.

Swanson finished the three-way primary in June with 46% of the vote, while Lynch garnered 38% to advance to the general election, and the third-place candidate's 16% is now up for grabs. Swanson said his campaign will not sit idle in light of that lead, while Lynch has a deeper financial backing by outside groups to help close the gap.

Jeremy Johnson, a political scientist at Carroll College in Helena, said those June totals are unlikely indicators for the general election. Primary tallies are much smaller than voter turnout in November, he said. Democratic U.S. Sen. Jon Tester, for example, has gotten fewer votes than his opponents in the primary and still pulled a win in the general election.

"I do think a lot more votes are up for grabs," Johnson said.

In the months since the primary, candidates have worked to get in front of voters during a buzzing election year with every statewide office on the ballot, plus the nation's most-watched U.S. Senate contest. Lynch has taken a more aggressive approach than the typically quieter judicial campaign playbook when it comes to pushing back against what he calls unwarranted attacks by the Legislature and aligned himself with advocates for abortion access. Swanson has sought to take advantage of Lynch's tone by framing himself as the more tempered candidate who would meet the moment in which harmony between the governmental branches is well off-key.

Separate from the campaigns, political organizations and super PACs have already spent millions trying to introduce more traditionally partisan lines between the candidates. And if recent races are any indicator, the biggest ad buys in this race are yet to come.

Staging for the bench

Judicial candidates are barred by their code of conduct from expanding on their views about topics or issues that may come before them in court cases, but a series of forums held across the state in recent months have given Lynch and Swanson an opportunity to stake their campaigns out before live audiences.

Those events also gave the campaigns a chance to break through the noise of the U.S. Senate race that's taken up much of the political airspace this year, to say nothing of the presidential election.

And while communicating a candidate's vision for the chief justice's office can be sometimes difficult to translate to voters outside the legal community, the judicial branch's public friction with the partisan legislative and executive branches of state government has provided perhaps the biggest stage for Swanson and Lynch to set themselves apart. That quarrel dominated the 2022 election between incumbent Justice Ingrid Gustafson and Republican Public Service Commission president James Brown — and those candidates never appeared side-by-side for such forums last cycle.

"People are heavily concerned about the level of political acrimony in Montana right now in relation to the court," Swanson said in an interview earlier this month on his takeaways from the forums. "I have made the point consistently that we can't let the political cases overshadow the rest of the work that the court does. Political cases are a very, very small percentage of the total caseload of the Supreme Court. My focus is on all the court's work, not just how we're going to rule in these territorial or turf battles in Helena."

Lynch, meanwhile, puts that separation-of-powers dispute at the center of his campaign.

"The most pressing issue right now is the tension between the legislative and judicial branches," he said, noting it's the catalyst that got him into the race. The Montana Senate Republicans in particular have spent months this year seeking out misdeeds in the judicial branch and raised the notion of impeachments. Lynch has called that group of Republicans fixated on the courts "extremists."

"I'll work with people," Lynch said. "That's what I did as a judge. I will continue to do that, but at the same time, I will tell the people I'm not going to stand for sacrificing the independence of the judiciary because it's the bedrock of our constitutional democracy."

Lynch, in some of those exchanges on stage, has played the aggressor against his opponent, even overrunning the moderator in order to do so.

"Don't interrupt me, John," Lynch told the executive director of the State Bar of Montana, John Mudd.

In an interview in early October, Lynch acknowledged that "sometimes people think I get maybe a little too aggressive."

But as chief justice, could such aggression further tilt the Legislature against the judicial branch?

"I ponder that, but I also want the citizens of Montana to know the importance of the judiciary, because that's what protects, at the end of the day, their constitutional rights," Lynch said. "With all the publicity being generated by the Legislature, I think people, citizens, have to be aware that whoever is going to get that job will, in fact, work cooperatively, but at the same time stand up for the independence of the judiciary."

Swanson called Lynch's demeanor "combative," and said it's been a good opportunity to advocate for his own candidacy at these events.

"I just tried to respond with who I am, and let the voters decide if they like my temperament or if they like his temperament," Swanson said.

Lynch, for his part, has tried to emphasize his background and experience on the federal bench. For 13 years he presided over federal cases as a magistrate, a judicial position by way of appointment by a merit selection panel rather than by the president. He pointed to his role in past cases as a mediator, saying that would lend itself to the role of chief justice that includes guiding the judicial branch at large.

"My experience is as broad as anybody's in the state, and I just don't think that Mr. Swanson has the experience," he said. "It's not the place to cut your teeth as chief justice of the entire judicial system of the state of Montana."

Swanson nodded to his own experience in leadership roles in the National Guard, creating buy-in from multiple parties, as informative to his approach to the chief justice position. A recent deployment to the Middle East, he said, meant balancing competing interests from coalition forces in a volatile part of the world.

"I wasn't there to blow up the alliance, I was there to strengthen the alliance," he said.

Swanson also said the county attorney position, which operates in the state courts system, would serve him well.

"More experience in the state system matters," he said. "(Lynch) likes to point out, 'Hey, I've got all this experience as a judge.' And yeah, he does. I can't dispute that. But there are a lot of members of the current court that were never judges before they became members of the Montana Supreme Court and frankly, they're doing a very good job."

"I'm just looking at the long-term health of not just the judicial branch, but our republic, and saying, man, we have got to have some leaders that can move us through this mess and into restoration of good business conduct without constantly engaging in these food fights," Swanson continued. "I'm a very optimistic person and I believe that not only I want that and can bring that, but I think the other parties want that as well."

Send in the super PACs

This year's Supreme Court races have so far remained void of any official endorsements from statewide elected officials, a difference from two years ago when the state Republican Party threw its support behind two candidates who ultimately did not succeed. Still, partisan groups have spent cash on mailers, campaign ads and more to shape a partisan narrative over the campaigns. The GOP is supporting Swanson, while Democrats have lined up behind Lynch. Those alignments have played out in individual donations, as well as support from the parties' county central committees.

And while both candidates have made efforts to distance themselves from the politics seeping into the race, they do flirt with that line in a way that can be interpreted as signaling to voters.

Lynch, for example, has been explicit about the need to protect reproductive rights as a matter of upholding precedent in Montana that maintains access to pre-viability abortions under the constitutional right to privacy.

Swanson, meanwhile, has included "judicial conservative" in some of his campaign materials, but contends that language speaks more to his judicial philosophy — keeping rulings narrowly tailored to the arguments presented to the court — than a partisan bend.

But it's the influence over public messaging by outside groups that's perhaps more striking.

A review of independent expenditures by outside groups through the end of September shows that virtually every dollar spent toward supporting Lynch's campaign was also spent supporting Richland County District Court Judge Katherine Bidegaray, who is running for associate Supreme Court justice. Similarly, money spent supporting Swanson is likewise spent on support for Bidegaray's opponent, Flathead County District Court Judge Dan Wilson.

That alignment is most likely due to a lack of incumbent in either race, Johnson said.

"Really, both candidates are fairly well-aligned now with more liberal or conservative groups," Johnson said. "And not having an incumbent allows that alignment to be there from the beginning."

Wild Montana Voter Fund and Montana Conservation Voters have spent several hundred dollars pushing Lynch and Bidegaray as champions of public lands.

Planned Parenthood Votes, the super PAC for Planned Parenthood, announced on Wednesday it will spend $2.2 million this month on ads attacking Swanson and Wilson on abortion access. That organization partnered with the National Democratic Redistricting Committee to target and spend in state Supreme Court races.

Montana Trial Lawyers Association, which dominated the 2022 race in financial support for Gustafson, has ties to two groups with financial stakes in the race. Montanans for Fair and Impartial Courts has supported Lynch's campaign, while Montanans for Liberty and Justice has supported Bidegaray. Together, they've spent $1.1 million through September.

The Montana GOP has, through that same time, spent just under $400,000 for Swanson and Wilson, who conservatives have dubbed "The 'Sons' of Montana," although county Republican central committees have chipped in as well.

Johnson's survey of independent expenditures tells him there's money for all Supreme Court candidates this year, but perhaps more is coming in from Democratic-leaning organizations because Democrats fielded candidates who largely failed to gain traction this cycle.

"These groups may feel like there's more at stake now in the judicial races," he said.

Republicans, meanwhile, have let their money do the talking, rather than brand their chosen candidates with endorsements, like statewide elected officials did in 2022 with Brown.

"Those are some things that didn't work two years ago," Johnson said. "What really works better is to have that Democratic or Republican label to signify to voters. Without that, it makes judicial races more open and less predictable."

The general election is Nov. 5. Absentee ballots began reaching voters last week.

Seaborn Larson has worked for the Montana State News Bureau since 2020. His past work includes local crime and courts reporting at the Missoulian and Great Falls Tribune, and daily news reporting at the Daily Inter Lake in Kalispell.

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