Keila Szpaller

(Daily Montanan) The Senate Judiciary Committee approved University of Montana law professor Anthony Johnstone’s nomination to be a judge for the Ninth Circuit Court of Appeals on an 11-10-1 vote, according to a news release from U.S. Sen. Jon Tester.

The nomination now awaits a vote by the full Senate, controlled by Democrats. 

“Anthony Johnstone has a proven record of applying the law without bias and standing up for our constitution, which will make him an excellent judge on the Ninth Circuit Court of Appeals,” said Tester, a Democrat, in a statement. “He has served the people of Montana with fairness and integrity, and I have no doubt that he’ll continue to do the same at the federal level.

“With broad bipartisan support from a wide variety of stakeholders in Montana and across the country, I’m looking forward to confirming Mr. Johnstone’s nomination soon on the Senate floor.”

Neither Tester nor Republican U.S. Sen. Steve Daines sits on Senate Judiciary. In an email, Daines’ office noted the split vote out of committee as a concern.

“The Ninth Circuit Court is very important for Montana — it’s the largest circuit court with 29 active judges and Montana only has one seat on it,” said a spokesperson from Daines’ office in an email. “The Senator believes we need someone who will uphold the Montana way of life and won’t legislate from the bench, and he also believes it’s concerning that Johnstone’s vote out of the Committee was on partisan lines.”

The news release from Tester’s office provided links to endorsements for Johnstone, including a joint letter from former Montana attorneys general Steve Bullock, a Democrat, and Tim Fox, a Republican. They said they “enthusiastically” support his confirmation.

Bullock most recently served as governor.

“We represent different legal and professional backgrounds and espouse different jurisprudential views,” said the letter from Fox and Bullock. “We hold in common our dedication to public service, specifically as attorneys general charged with the great privilege of representing the people of our state.

“We also share a deep appreciation for the intellect and integrity Mr. Johnstone consistently brought to his public service as Assistant Attorney General and State Solicitor of Montana and continues to demonstrate through bipartisan work among state attorneys general as a constitutional law scholar. Based on our experience with Mr. Johnstone, we are confident that he will be an excellent federal judge.”

A letter of support from more than 100 current former students of Johnstone also praised him and noted their own differences.

“We are diverse in background and ideology — we include leaders in the Federalist Society, the American Constitution Society, the Native American Law Students Association, the Student Bar Association, and both of the University’s law journals,” the letter began.

In it, the current and future lawyers remarked on Johnstone’s intellect, temperament and fairness.

“In class, he encouraged and challenged student perspectives, pushing us to understand and apply the law, especially when students were inclined to rest on personal or political assumptions,” the letter said. “Through his mentorship, we learned to read carefully, to understand and respect opposing points of view, and to present our own thoughtfully and with textual support.

“The parties who appear before him will benefit, just as we have, from Professor Johnstone’s impartiality.”

The signers said they consider Johnstone a teacher, advisor and mentor: “As much as we would like future students to benefit directly from his leadership as we have, we know that his elevation to the bench will serve the best interests of the judiciary and the American people.”

U.S. President Joe Biden announced Johnstone’s nomination this fall. Johnstone is the Helen and David Mason Professor of Law and an affiliated Professor of Public Administration at the Alexander Blewett III School of Law at UM where he has taught since 2011.

Johnstone served as solicitor for the State of Montana, as former assistant attorney general at the Montana Department of Justice, and as a litigation associate at Cravath, Swaine and Moore LLP in New York. He also served as a clerk for Judge Sidney R. Thomas of Montana on the Ninth Circuit from 1999 to 2000.