Idaho may soon fill a critical job vacancy that opened when Edward Lodge announced in September 2014 his intent to “assume senior status” - more or less, semi-retire – the following July.
That would allow a deep breath of relief on the underpopulated Idaho federal bench, which long has sought more judicial help. The Obama White House and Idaho’s two Republican senators, Mike Crapo and Jim Risch (both lawyers by profession), have agreed on David Nye of Pocatello, a 6th district judge, to fill the job. Kudos all around.
Pause a moment on the 6th judicial district aspect. The 6th, which is on the state not federal level, is based in Pocatello and includes counties to its south and east. It is one of the smaller Idaho judicial districts, but it has outsized federal impact. One former judge from the 6th (from 1987 to 1995) is Lynn Winmill, who now is the chief federal district judge in Idaho. Another (from 1995-2007) is Randy Smith, now a judge on the U.S. Court of Appeals, who maintains an office in Pocatello.
Winmill and Smith have in common a political background running political party organizations. Winmill once chaired the Bannock County Democrats, and Smith once chaired the Idaho Republican Party. Still, you’d probably find most attorneys in Idaho agree that those backgrounds seem not to have interfered with their judicial work. As with Lodge, their reputation is of being good, fair judges.
The new federal nominee, Nye, worked for the same law firm, Merrill and Merrill, that Smith did before his move to the bench. He has far less visible political background than the two other judges, which may help in his selection now. And he’s gotten good marks for his judicial work. Crapo and Risch are asking the Senate to push his confirmation through.
Last week, Idaho Democratic Chair Bert Marley pointed out that the senators have at the same time refused even to consider another court appointment by the president, Merrick Garland for the U.S. Supreme Court. Garland, somewhat like Nye, seems to have not a lot in the way of political involvement in past years, and there’s been little to no argument against his merits. So, Marley asked, what gives?
Risch told McClatchy News the difference was between a lower-level judge and one on the high court. The district judge is “not involved in being an architect of the culture of our country, which is what a U.S. Supreme Court judge does. The U.S. Supreme Court is very, very political, just like Congress is, just like the president of the United States. People wring their hands and say, ‘Oh, that’s terrible, you shouldn’t bring politics into it.’ How do you not bring politics into it?”
The role of “architect of the culture” is a piece of Supreme Court job description I’ve never seen before (you won’t find it in the Constitution) and, as Marley said, seems to run directly into the critique of many Republicans who decry activist judges, most especially on the Supreme Court.
It also downplays the powerhouse role federal district judges often play. Supreme Courts, after all, hear a fraction of the cases they’re asked to review. District or circuit judges in effect decide a whole lot of law. Reviewing Winmill’s impact on Idaho in a book a last year, I wrote: “He ordered a delay in megaload shipments over Highway 12 and said the Forest Service had to take some responsibility for them. He killed state laws related to abortion on constitutional grounds. He ordered dissolution of the St. Luke’s acquisition of the Nampa-based Saltzer Medical Group, citing anti-trust laws (creating major implications for more medical mergers in the area; that case is still on appeal). He said the federal government has to reconsider if it has acted as thoroughly as it can to protect sage grouse before declaring the species endangered. He delivered a split decision on the protesting rights of Occupy Boise. He approved a state Republican Party push to “close” its primary election to registered Republicans only.”
How do you not bring politics into any of these things? The answer is, the best we can do at any level of court is to hire fair judges. Would Nye and Merrick be fair judges? That seems to be the relevant question.