Sen. Risch defends process to select new fed judge
Here's my full story from spokesman.com:
BOISE – Now that Idaho finally has a nominee for its vacant federal judgeship, state 6th District judge David Nye, Idaho Sen. Jim Risch is defending the lengthy, secretive process he and Sen. Mike Crapo followed over the past 19 months to vet potential nominees, saying anything else would have violated the U.S. Constitution.
“I solicited advice from people whose judgment I trust, but nobody, nobody voted on this but me,” Risch said. “No commission, no group – I made the decision, as the Constitution requires.”
Russell Wheeler, a fellow with the Brookings Institution, former deputy director of the Federal Judicial Center and an expert on the selection of federal judges, said, “That’s patently absurd.” Senators in roughly 20 states use “vetting committees,” often bipartisan ones, to help screen nominees for federal judge; the president makes the nomination, and the Senate confirms it. Committees typically are used to “preserve the senators’ prerogative while being more open, transparent and inclusive,” Wheeler wrote in a 2011 paper on the panels.
Wheeler said, “By Risch’s logic, the president is violating the Constitution when he submits the names to the FBI to have them do a full field investigation. It’s not unconstitutional, it’s due diligence.”
In the past decade, home-state senators have taken an increasing role in selection of federal judges, through an unwritten rule in the Senate Judiciary Committee requiring both home-state senators to complete “blue slips” saying they approve of nominees for federal judge in their state before any hearings are held. That essentially gives the two senators a veto over judge selections, forcing the White House to work with them in selecting nominees.
“The Constitution says nothing about senators making recommendations to the White House,” Wheeler said. “That’s just extra-constitutional aspect of the nomination process that’s grown up over the years, that the home state senators have outsized role in recommending to the president who the president might nominate. But there’s nothing in the Constitution that calls for that.”
The last time Idaho got a new federal district judge, in 1995, then-Sens. Larry Craig and Dirk Kempthorne, both Republicans, convened a bipartisan commission, including five Democrats and four Republicans, to vet 38 candidates and make recommendations on a new federal judge. It included Idaho attorneys from both parties, a former U.S. Attorney for Idaho, and the chairs of the House and Senate judiciary committees. The three finalists were then-state 6th District Judge B. Lynn Winmill; Idaho Attorney General Larry EchoHawk; and U.S. Magistrate Judge Larry Boyle of Boise.
Winmill was the commission’s unanimous choice; he was nominated by then-President Bill Clinton and confirmed in late 1995 amid praise from both Craig and Kempthorne.
Winmill is now Idaho’s only full-time federal district judge, since longtime Judge Edward Lodge took senior status last July 3, reducing his caseload. The federal courts have declared a “judicial emergency” in Idaho due to the lack of judicial resources, and out-of-state judges have been brought in to hear Idaho cases.
President Obama nominated Nye last week, amid praise from Risch and Crapo. “It takes a unanimous vote of three people,” Risch said, “and obviously those people are the president, Sen. Crapo and myself.”
He said, “Judge Nye is outstanding. I’m just incredibly satisfied with where we finally landed on this.”
After Lodge announced his retirement plans in September of 2014, Risch and Crapo that December began accepting email inquiries from interested applicants. Applicants were “numerous, in the dozens, in the dozens,” Risch said. However, Nye wasn’t among them; he said last week that he was contacted personally by the two senators by phone in January of 2016 about the position.
“We considered everyone who applied, and some who didn’t,” Risch said, “on the basis of what we wanted to see from a philosophical and judicial standpoint.”
James Ruchti, a Pocatello attorney and Idaho Trial Lawyers Association board member who’s praised Nye’s selection, said, “I was surprised that the process that was used was so opaque and messy. There are lots of qualified, quality attorneys and judges in the state of Idaho that could have been appointed to that position, and I didn’t feel like the process was done in such a way that we had a fair opportunity to see who those people should have been. Having said that, I do think, Judge Nye, he’s one of those people, so they got there at the end of the day. But that is not the process I envisioned nor one that I think served the state well.”
Last spring, there was an outcry from female members of the Idaho Bar after word surfaced that the two senators had interviewed only four men for the lifetime appointment, though at least five prominent female Idaho attorneys, including at least one sitting judge and two high-ranking prosecutors, had applied but not been interviewed. Idaho is the only state in the 9th Circuit and one of just two in the nation that has never had a female U.S. district judge. Risch and Crapo subsequently announced that they were interviewing both male and female candidates, and some female candidates were interviewed.
Last fall, Idaho attorneys reported receiving bar questionnaires about a possible nomination of Boise attorney Erika Malmen to the seat; she was a surprising choice as she had little trial experience, but strong GOP political connections, as her husband, Jeff Malmen, senior vice president of Idaho Power Corp., is among the state’s top GOP operatives. That nomination subsequently didn’t proceed, and similar vetting began for state District Judge Richard Bevan of Twin Falls, who was widely praised in Idaho as a qualified applicant; his nomination, also, didn’t proceed.
“There were a number of people who were vetted formally and informally by our side, that is myself and Crapo, by the White House’s side, and even some by the two camps together,” Risch said. “I’d like to have done it the day after we decided we were going to do this, but it didn’t work that way,” he said. “Yes, I did spend an inordinate amount of time on it, but it is a unique and substantial obligation that I have under the Constitution to do this.”
Crapo said he didn’t think using a vetting committee would have speeded up the process. “We actually submitted our first round of recommendations to the White House in probably early May, which was two or three months before Judge Lodge’s retirement,” he said. The delay, he said, came in finding someone acceptable both to the senators and the White House.
Risch said he paid no attention to the gender of applicants. “No one had an advantage because they were a man, no one had an advantage because they were a woman,” he said. “Those considerations were off the table.”
Crapo said, “I think that it would be a very positive thing if we could have at some point, and at some point soon, a female judge in the district of Idaho. ... It did not work out in this case. ... In this particular case, the evaluation and the vetting process ultimately was able to be finalized on Judge Nye. But I think that is a very worthy objective that we should seek to fulfill as soon as we reasonably can.”
Risch, an attorney, said it likely hasn’t hurt Idaho to have visiting federal judges brought in from other states. “They probably ought to do more of that, because they’ve got a lot of judges that don’t have near the caseload that our judges do,” he said. “You would prefer to have a judge from your own state hearing cases, but when I practiced up there, I had cases where they brought judges in from out of state, we were perfectly satisfied with that.”
Confirmation prospects
So what are the chances that Idaho’s newly nominated federal district judge, David Nye, will get confirmed? Idaho’s two GOP senators, Jim Risch and Mike Crapo, say they’re pushing hard for it to happen this year, despite the standoff between the White House and the Senate over the Senate’s refusal to hold hearings on President Obama’s nominee to the Supreme Court, Merrick Garland.
Russell Wheeler, a fellow with the Brookings Institution and an expert on the selection of federal judges, said the high court fight is unrelated to district judge confirmation prospects, as the Senate has been confirming district judges, but it’s been doing so very slowly. “He’s got 34 people ahead of him, 34 pending nominees. And the Senate has been moving at a snail’s pace,” Wheeler said.
Of those 34 pending U.S. District Court nominees, 14 already have had Senate hearings, which Nye still would need to undergo. Wheeler said the chances of Nye’s nomination being confirmed this year are “slim to none,” unless Idaho’s senators can “pull some very powerful strings.”
Idaho Sen. Jim Risch said he and Sen. Mike Crapo already have met with Senate Judiciary Chairman Charles Grassley about a possible hearing – even before the nomination was announced – and lunched with Senate Majority Leader Mitch McConnell last week to press the case for confirmation.
Wheeler said of Grassley and McConnell, “They’re the ones that control this.”
“It’s doable,” Risch said. “Is it going to happen? You know, that’s like trying to say who’s going to be president of the United States these days.”
Risch said the rule is that the Judiciary Committee processes nominees in the order in which they come in for hearing, but after that, “they are not required to be handled in order, and that becomes a matter of give and take with the other side. And the closer you get to the end, they’ll bunch ‘em together frequently and do them on voice vote.”
Crapo said, “Sen. Risch and I are very aggressivley working to try to get this nomination moved.” He added, “One thing that helps us in that process: We have the White House in support of this nomination. We truly do have bipartisanship on this. We’ve done the vetting and done the negotiation and worked this out.”
