University of Montana Law Professor Anthony Johnstone has spent his career engaging with the law, including serving as Montana Solicitor General under then Attorney General Steve Bullock.
Anthony Devos Johnstone was born in 1973 in Minneapolis, Minnesota. Johnstone graduated from Yale University in 1995 and from the University of Chicago Law School in 1999 before joining the New York office of Cravath Swaine & Moore.
In 2004, Johnstone moved to Montana to join the Attorney General’s Office. In 2008, Johnstone was selected to be Montana’s State Solicitor, where he served until 2011.
Since 2011, Johnstone has served as a professor at the University of Montana Blewitt School of Law.
History of the Seat
Johnstone has been nominated for a future vacancy that will open upon his former boss Thomas’ move to senior status upon confirmation of a successor. Originally recommended for the vacancy by Sen. Jon Tester, Johnstone was nominated after interviews with Tester and Sen. Steve Daines and with the White House.
After clerking for Judge Sidney Runyan Thomas, Johnstone started his career at the New York office of Cravath Swaine & Moore.
From 2004 to 2008, Johnstone worked for the Montana Attorney General’s Office. In this role, he advised on the language of ballot initiatives, including a proposed initiative to ban same sex marriage. See Bob Anez, Gay Advocacy Group Attacks Same-sex Marriage Ban, A.P. State & Local Wire, Apr. 26, 2004. He also worked on advisory opinions, including one stating that county voters had the right to vote on closing a garbage incinerator. See Draft Opinion: Voters Have Right to Decide Fate of Incinerator, A.P. State & Local Wire, June 22, 2004. In this role, Johnstone also defended the constitutionality of prospective ballot measures in court. See, e.g., Matt Gouras, Another Legal Challenge to Spending Cap Heard Thursday, A.P. State & Local Wire, Sept. 14, 2006. Johnstone also argued before the Montana Supreme Court regarding misconduct by trustees for the art collection of Alberta Bair. See Susan Gallagher, State Supreme Court Weighs Fate of Museum on Montana Ranch, A.P. State & Local Wire, Nov. 1, 2007.
From 2008 to 2011, Johnstone worked as Montana’s State Solicitor, serving as Montana’s primary lawyer in court. In this role, Johnstone argued a number of cases before the Montana Supreme Court, including a ruling in which the Montana Supreme Court ruled that Montanans had the right to assisted suicide. See Baxter v. Montana, 2009 MT 449 (2009). Johnstone also argued that gay couples were not entitled to spousal benefits under state law because the statute limited them to married couples (gay marriage being banned in Montana at the time). See Matt Volz, Gay Couples Argue for Same Rights as Wedded People, A.P. State & Local Wire, Jan. 26, 2011.
Since 2011, Johnstone has served as a law professor, focusing on issues of constitutional law.
As a law professor, Johnstone has written and spoken extensively on the law. We cover some of the topics he has covered below.
Election Law and Campaign Finance
Election law is one of Johnstone’s expertises. He has testified before the Senate in support of campaign finance restrictions invalidated by the Supreme Court in its Citizens United decision. See Richard Hanners, Federal Judge Rules Against State Campaign Finance Limits, Hungry Horse News, Oct. 4, 2012. He also argue in favor of a resolution calling Citizens United wrongly decided at a debate between the American Constitution Society and the Federalist Society. See Resolved: Citizens United Was Wrongly Decided, US Official News, May 4, 2015. He has also written on the negative impact of Citizens United on judicial elections. See Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47 (Spring 2015).
On the criminal side, Johnstone commented on whether the Constitution’s Speedy Trial right applies to sentencing as well as trial. See Matt Volz, U.S. Supreme Court Takes Up Speedy Trial Fight in Montana Case, A.P. State & Local, Mar. 24, 2016.
Johnstone has been critical of campus “free speech zones,” arguing that they necessarily imply that there are certain areas on campus where free speech was not protected. See Claire Shinner, Legislation Aims to Bolster Campus First Amendment Rights, Montana Kaimin: University of Montana, Feb. 23, 2021. Johnstone has also criticized legislative proposals that prevent the removal of students from groups for harassment, noting that they may prevent the university from enforcing its policies. See Mariah Thomas, Free-Speech Legislation Raises Discrimination Concerns, Montana Kaimin: University of Montana, Mar. 2, 2021.
Given the extensive nature of Johnstone’s writings and media comments, there is plenty for opponents to mine. Nonetheless, the bulk of his writings and legal experience makes Johnstone hard to pigeonhole as an ideologue. If Democrats hold the Senate, he will likely be confirmed comfortably.
This was my number one choice from the moment this seat became vacant. Since he was given a hearing in the SJC on a recess week & only one Republican showed up, he should sail to confirmation.
I expect Johnstone to be confirmed fairly comfortably, whether it’s in the lame duck period or early in 2023 within another Democratic majority.
It depends partly on how Senator Steve Daines winds up voting. He won’t be able to stop the nomination by himself, but if he would make it a lot easier if he supports Johnstone.
That would certainly help, but Johnstone is mainstream enough that I imagine Graham, Collins, and Murkowski would all support. He should get discharged from SJC the week after Thanksgiving, giving him enough time for a vote this term if necessary
Likely yes, but I wonder how Republicans will treat nominees that were in the “recess” hearing compared to other nominees.
Very possible. Also if they win control of the senate they’ll probably be much more combative
If Daines doesn’t return his blue slip, then neither Collins, Murkowski, or Graham will vote for him – they all voted against Mathis and Freeman (the only court of appeals nominees to not get blue slips), and Mathis also did not have much of a progressive resume. Dems better confirm Johnstone before this Senate runs out, as it doesn’t seem likely at this point that they can hold the Senate after the midterms.
I think anyone saying they are 100% confident who is winning control of the Senate is lying through their teeth as it stands right now. All we can do is wait until Election Day.
538 says Dems have about a 51% chance of keeping the Senate, which is significantly less than the 70% projection a while back, and given 538 poll history it probably means the GOP actually has a 60-70% chance of taking the Senate.