Biden Pick from Conservative Montana Confirmed to Ninth Circuit

Anthony Johnstone, a Montana law professor and one of President Joe Biden’s few judicial nominees from a conservative-led state, was confirmed to the nation’s largest appeals court.

The Senate confirmed Johnstone, 50, on Monday, 49-45, to the US Court of Appeals for the Ninth Circuit. It’s Biden’s seventh nominee confirmed to the San Francisco-based circuit.

Johnstone, who’s headed for the tribunal’s lone Montana seat, is a former state solicitor, or the state’s top lawyer in court, and most recently a professor at the University of Montana’s Blewett School of Law.

He taught and wrote about federal and state constitutional law, legislation, and election law, according to the school’s website.

“We know Professor Johnstone to be a person of unimpeachable character, eminently well-respected by the practicing bar and by state and federal Judges throughout Montana and in other courts and venues,” six retired Montana Supreme Court justices wrote the Senate Judiciary Committee in support of his nomination.

Montana is solidly conservative, although its Senate seats are split between Jon Tester, a Democrat, and Steve Daines, a Republican. Tester’s office sought out Johnstone for the Ninth Circuit, and Daines interviewed him.

Tester gave Johnstone a glowing introduction at his Senate confirmation hearing, but Daines has said he considers him a Biden ally and out of step with conservative views on gun rights and immigration policy.

The University of Chicago Law graduate clerked for Bill Clinton’s Ninth Circuit appointee Sidney Thomas, and has been a member of the conservative Federalist Society and the progressive American Constitution Society. Those groups feature in his work as a law professor, for instance, as a panelist or moderator for student forums.

Early in his career, he was a litigation associate with Cravath, Swaine & Moore LLP in New York, focusing on antitrust and securities law. From 2004-11, he was an assistant attorney general and then Montana’s state solicitor. About two thirds of his work for the state was in litigation, he said in his Senate Judiciary Questionnaire.

His record as a litigator includes more than two dozen appeals in federal and state court, including three arguments before the Ninth Circuit and a half-dozen briefs for a party or as amicus submitted to the US Supreme Court.

He has represented Montana in public land trust cases in which the state sought payment from hydroelectric companies for their use of river areas needed to operate their projects.

Johnstone also represented the state in a free-speech challenge to its law prohibiting corporate campaign contributions. The US Supreme Court ultimately invalidated the law in light of its landmark Citizens United v. FEC decision.

In letters to the Judiciary Committee as a law professor, Johnstone supported Biden’s nomination of Ketanji Brown Jackson to the US Supreme Court and Donald Trump’s selection of former Yale and Chicago Law classmate Neomi Rao to the DC Circuit.

Johnstone also received support from the Blackfeet, Chippewa Cree, and other tribes, citing his deep Montana roots as well as his knowledge of Indian law and the frequency of those cases at the Ninth Circuit.