Why conservatives should defend judicial independence | Joel Krautter
Imagine you find yourself in court. Maybe it's a dispute with your neighbor over road access, a broken contract, or a lawsuit after you've been injured by someone’s negligence.
Now, imagine that Montanans elect judges in partisan elections. And then imagine your opponent in court is a prominent leader in the same political party as the judge hearing your case.
Even if you believed that judge sincerely intended to be fair, wouldn't you still wonder whether partisan politics might influence the outcome?
Our courts depend on public confidence that cases will be decided according to the Constitution, the law, and the facts—not according to political party loyalty.
That question lies at the heart of CI-132, the constitutional initiative on Montana's November ballot to enshrine Montana's 91-year tradition of nonpartisan election of judges.
A recent opinion piece urged Montanans to reject CI-132. I believe this debate should begin with first principles rather than partisan politics.
Conservatives have traditionally believed that limited government and individual liberty are best protected by dividing governmental power rather than concentrating it. Both the United States and Montana Constitutions establish three co-equal branches of government, each serving as a check on the others. Legislatures make laws. Executives administer them. Judges serve a different role: interpreting the law and safeguarding your constitutional rights. That constitutional design only works if each branch remains genuinely independent.
Alexander Hamilton explained why in Federalist No. 78, writing that "the complete independence of the courts of justice is peculiarly essential in a limited Constitution." He further warned that "liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments."
The takeaway is clear — the danger is not an independent judiciary, but one teamed up with another branch of government that reflects electoral partisanship.
Judicial decisions should not be viewed through a red-versus-blue partisan political lens. The reality is that courts sometimes issue rulings conservatives applaud and liberals oppose, and other times the reverse. That is not evidence the courts are failing; it is often evidence they are doing exactly what courts are supposed to do — interpreting the law fairly rather than applying partisan political preferences.
Reasonable people can disagree about how judges should be selected, and voters understandably want meaningful information about judicial candidates. Supporters of partisan judicial elections claim using party labels provides them with needed information. Yet today's hyper-polarized political climate shows otherwise. Recent Montana Republican legislative primaries demonstrated that even candidates sharing the same party label can be attacked as insufficiently conservative or as flyers in some races claimed, "Democrats in disguise." Adding party labels to judicial candidates would import those same political pressures into our courts while doing little to help voters evaluate a candidate's qualifications, temperament, or judicial philosophy.
These concerns are not theoretical. Conservative Montana Supreme Court Chief Justice Cory Swanson told the Legislature in his 2025 State of the Judiciary address that "the judiciary should remain non-partisan." Former Texas Supreme Court Chief Justice Nathan Hecht, a Republican who served under partisan judicial elections, concluded they are "among the very worst methods of judicial selection."
The Founders understood that liberty depends not simply on elections, but on institutions strong enough to enforce constitutional limits on government. Preserving an independent, nonpartisan judiciary is not contrary to conservative principles — it safeguards these principles. If we truly believe in limited government, checks and balances, and the rule of law, we should also believe in keeping unnecessary partisan politics out of our courts. That is precisely what CI-132 would do.
Joel Krautter
Joel Krautter is a Montana attorney and former Republican State Representative. He previously served as legal counsel for the group Montanans for Fair and Impartial Judges, which has endorsed CI-132.
Originally published in the Billings Gazette on 07/26/26