Tester’s office says Daines created political division he publicly criticized

U.S. Sen. Steve Daines lobbied fellow Republicans on the Senate Judiciary Committee to oppose the confirmation of a University of Montana law professor for the U.S. Ninth Circuit Court of Appeals, according to the office of U.S. Sen. Jon Tester.

Daines’ office did not respond Friday to a request for comment.

One day earlier, Daines’ office said the partisan vote out of committee gave him pause, but a spokesperson for Tester, Daines’ Montana counterpart in the Senate, said Friday the concern was generated by Daines himself.

Anthony Johnstone, former solicitor for the state of Montana and current law professor at the University of Montana, received wide and bipartisan support in advance of the committee vote. 

Thursday, he squeaked through the committee on an 11-10-1 vote. Republican Sen. Lindsey Graham of South Carolina voted “present,” and all other Republicans opposed the nomination. 

Neither Daines nor Tester sits on the committee.

The nomination now moves to the full U.S. Senate for a vote.

Friday, a spokesperson for Democrat Sen. Tester said Daines himself lobbied Republicans on the committee to oppose the nomination.

“It’s unfortunate that Senator Daines tried to sink Anthony Johnstone’s nomination by lobbying members of the Judiciary Committee to oppose him,” said spokesperson Sarah Feldman in an email. “Senator Tester is confident through his own personal conversations that multiple Republicans would have supported Professor Johnstone had it not been for that push from Senator Daines to give himself the cover to call the vote a partisan one. Senator Tester is confident Prof. Johnstone will serve Montana well upon his eventual confirmation.”

Thursday, Daines’ office said the split vote out of committee worried him:  “The Senator believes … it’s concerning that Johnstone’s vote out of the Committee was on partisan lines.”

None of the other Republican members of the committee responded Friday afternoon to questions from the Daily Montanan about whether Daines had visited with them about the nomination, and if so, whether he had influenced their votes.

In Montana, members of the legal community and tribal leaders are among those who endorsed Johnstone’s confirmation.

Letters of support from tribes noted U.S. President Joe Biden’s nominee has an understanding of federal law and Indian Country, which signers said will serve the court well.

“Johnstone will bring valuable experience in Indian Law to the Ninth Circuit, as he has demonstrated through his integration of Indian Law into his work and courses,” wrote Harlan Baker, chairman of the Chippewa Cree Tribe of the Rocky Boy Reservation.

Leaders of the Blackfeet Nation, Assiniboine and Sioux Tribes of the Fort Peck Reservation, Fort Belknap Indian Community, and Little Shell Tribe penned similar letters of support.

Gerald Gray, chair of the Little Shell Tribe of Chippewa Indians of Montana, noted Johnstone’s experience in a broad range of federal law and his public service and deep roots in Montana.

“Indian Law cases are frequently before the Ninth Circuit Court of Appeals, so we believe it is important for the Court to have a member who is well versed in Indian Law,” Gray wrote.

Blackfeet Tribal Business Council Chair Iliff “Scott” Kipp argued Johnstone’s resume speaks for itself but also noted his support for Native American law students in particular and experience in Indian Law. 

“These attributes lead the Blackfeet Tribe to believe that he is the best candidate to serve in the role as a federal judge on the Ninth Circuit Court of Appeals,” Kipp wrote.

Six retired Montana Supreme Court justices signed a letter backing him for his educational background from Yale College and University of Chicago Law School, his legal experience and “unimpeachable character” and “amiable demeanor.”

“Professor Johnstone possesses one of the best legal minds and is the finest and most respected legal scholar in the State of Montana,” wrote retired Justices James Nelson, Michael Wheat, James Regnier, Patricia Cotter, W. William Leaphart, and John Warner.

Johnstone served as a clerk for Judge Sidney Thomas of Montana on the Ninth Circuit from 1999 to 2000. Thomas, former chief of the Ninth Circuit, announced earlier this year that he would retire and take a “senior status” position, a semi-retirement role for judges.

Feldman confirmed Johnstone did not receive any letters advocating against him.