At 82, U.S. District Court Judge Edward Lodge is ready to call it quits, retiring as the longest-serving jurist in Idaho history.
He got some good news last week, when President Barack Obama nominated his successor, Judge David Nye of Pocatello, ending a long search that began when Lodge announced his retirement in September of 2014.
“We all knew that it was going to be a tough slog because Idaho is very conservative, as you know, and the president, not so much,” said Idaho Republican Sen. Jim Risch.
We all knew that it was going to be a tough slog because Idaho is very conservative as you know, and the president, not so much.
Sen. Jim Risch, R-Idaho
If history is any indication, the next step may be even tougher: getting the U.S. Senate to vote anytime soon on whether to approve Nye for the job.
While the Senate remains at loggerheads over how to replace the late Supreme Court Justice Antonin Scalia, that dispute is just the tip of the iceberg when it comes to judicial fights on Capitol Hill.
Nye is one of 50 of nominees awaiting a vote. The Senate on Monday approved a new federal judge for Tennessee, but, meanwhile, 85 other vacancies remained, according to the Administrative Office of the U.S. Courts. North Carolina has had one court vacancy since 2005.
85 Number of federal judicial vacancies in the United States as of April 12.
The growing backlog is causing headaches in federal courthouses across the country, with overloaded caseloads and overworked judges and little relief in sight.
“One district nominee has had a hearing this year, and it’s April,” said Carl Tobias, Williams Professor at the University of Richmond School of Law and a close observer of the Senate’s judicial confirmations. “So you can do the math. It’s not rocket science. It’s just a total shutdown as far as I can tell.”
It’s just a total shutdown as far as I can tell.
Carl Tobias, University of Richmond School of Law
Idaho is now one of 34 jurisdictions facing a “judicial emergency,” with the number of cases overwhelming the number of judges, according to the Judicial Conference of the United States, a group of judges that advises Congress.
“All over the country, you’ve got senior judges in their 80s, sometimes in their 90s, who are still working because they just don’t want to leave the other judges with even more work to do,” said Paul Gordon, senior legislative counsel for the liberal advocacy group People For the American Way. “It’s a bad situation.”
All over the country, you’ve got senior judges in their 80s, sometimes in their 90s, who are still working because they just don’t want to leave the other judges with even more work to do.
Paul Gordon, People For the American Way
Gordon said the current slowdown marks a sharp departure from the norm. With the confirmation Monday of Waverly Crenshaw Jr. as a new judge for Tennessee, the Senate has approved 17 judicial nominations since Republicans took control in 2015. Gordon said that compares to at least 40 circuit and district court nominees who’d been approved by the Democrat-controlled Senate in a similar time period during George W. Bush’s presidency. He noted that the number of confirmations last year was the fewest since 1960.
Hoping to win a quick vote, Risch and Idaho Republican Sen. Mike Crapo say they’ve already begun twisting arms with their colleagues, urging them to let Nye leapfrog ahead of some of the more controversial nominees.
Both senators say they want the Senate to sign off on Nye before Congress adjourns for the year.
“It’s very clear that we are in the last quarter of this Congress and so we need to move urgently. . . . The queue can get moved around,” Crapo said.
Risch said he’s “cautiously optimistic” that they’ll succeed: “You can’t move anything in the Senate without 60 votes, and it generally takes negotiations between the two parties. We’ve already had numerous conversations.”
With partisan warfare ruling the Senate, Tobias said the Idaho senators face long odds. He said the only hope for quick action will be if Crapo and Risch can convince Iowa Republican Sen. Charles Grassley, chairman of the Senate Judiciary Committee, of “how desperate the Idaho situation is.” But he said it will be difficult to convince all senators that Nye deserves an immediate vote when other nominees have waited much longer.
“I cannot be very optimistic,” Tobias said. “I do think that it could be a very long wait. My best guess is confirmation next spring, depending on the election results. It is very unfair to Idaho judges and litigants.”
Lodge, who began his judicial career in 1963, agreed to stay on the job after announcing his retirement but reduced his caseload to 75 percent last year.
Since then, Idaho has used visiting judges from Washington state, Utah, California, Colorado, Iowa and elsewhere, with 25 to 30 judges from across the country volunteering to help, said Elizabeth “Libby” Smith, clerk of court for the Idaho federal court system.
“That is one way we are trying to put a Band-Aid on this process and trying to keep the wheels of justice moving,” she said.
It’s an unpopular choice for litigating attorneys.
“Idaho lawyers don’t necessarily want visiting judges; they want their judges,” said Trudy Hanson Fouser, a Boise trial attorney and president of the Idaho State Bar.
Idaho lawyers don’t necessarily want visiting judges – they want their judges.
Trudy Hanson Fouser, Idaho State Bar
She credited U.S. District Judge B. Lynn Winmill, Idaho’s only full-time federal judge, for keeping the courts going, adding: “I think most places would just come to a screeching halt.”
Risch said he and Crapo hope to convince senators that Nye, a district court judge for Idaho’s Sixth Judicial District Court since 2007, is a consensus choice who deserves speedy consideration. He said the two senators considered dozens of applicants, looking for the candidate who would satisfy them and the White House.
“David Nye has a unique qualification that no other Idahoan has,” Risch said. “Three people agree that he should be the judge: the president, Senator Crapo and myself. . . . We knew it was going to be like looking for a needle in a haystack.”
Last month, Vermont Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, complained that the GOP-controlled Senate had all but stopped voting, even on “consensus nominees” who aroused no controversy. He accused Republicans of “listening to the moneyed Washington interest groups over their own constituents.”
In January, Heritage Action of America, a conservative advocacy group, urged the Senate to block all confirmation votes on federal judges this year, allowing exceptions only for posts that are necessary for national security. The group said the Senate needed to take back its power after Obama earlier used executive orders dealing with gun control and immigration.
Dan Holler, vice president for communications and government relations for Heritage Action for America, said that blocking votes is “certainly not ideal” for states such as Idaho but is necessary for Congress to reassert its constitutional authority.
“That is not always the cleanest thing to do. But it’s incredibly important for the country to get that balance right, even if it’s temporarily inconvenient,” he said.
Meanwhile, as Nye awaits his vote, Risch and Crapo are working to try to bring a third judgeship to their state. Idaho is now one of only three states – North Dakota and Vermont are the others – with two federal district court judges.
Risch said Congress would have to approve such a plan, not an easy sell for a small state.
“It’s big states that have muscle versus small states that don’t,” he said.
Tobias offered his advice: Forget about it.
“I think Judge Winmill should get used to having a huge caseload,” he said. “It doesn’t make any difference. If you can’t even fill the present vacancies, how are you going to get a new judgeship authorized?”