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A New Idaho Judge

It would be difficult to overstate the importance to Idaho of the various political and judicial decisions that will be made over the next few months at the White House, at the Justice Department, and in the United States Senate. These decisions will be made almost entirely behind closed doors. We’ll likely have to speculate about why the decisions that we eventually hear about were made and who influenced them. Lots of politics, partisan and personal, will be involved. Chances are some deals will be cut. In the end, the decisions will impact the state – and arguably all of its residents – for a generation.

As Joe Biden might say – nominating and confirming a federal judge is a pretty big deal.

LodgeLast week long-time U.S. District Judge Edward Lodge told President Obama and the Idaho Congressional delegation of his decision to assume “senior status” as a federal judge. That move allows Judge Lodge, on the federal bench for a quarter century, to gradually scale back his case load, and also paves the way for the President to nominate, and the Senate to confirm, the first new federal judge in Idaho in nearly two decades.

When I read the news about Lodge’s decision I had two immediate thoughts: Like most who know him and have followed his career, I reflected on his long and distinguished tenure (something I wrote about a while back) and then, like I would bet ever lawyer and political person in Idaho, I immediately started thinking about who might replace Lodge on the federal bench.

 You can bet there will be lots of volunteers for the job Ed Lodge now holds – it pays pretty well, the work load is substantial, but the working conditions aren’t bad, and there is that “life-tenure” provision (assuming good behavior) that the Founders wrote into the Constitution. One can almost see Idaho’s lawyers gazing into their bathroom mirrors and seeing a federal judge smiling back. Like every high school senior class president who secretly thinks of herself as President of the United States one day – and I use that “her” purposefully – most lawyers, if they are candid, will admit to thinking about becoming a federal judge. It is really a pretty big deal.

So, some modestly informed guessing about how this devilishly important and mostly secret process will unfold.

If Idaho had a Democratic elected official, even one, at the federal or even the state level it might be easier to predict the nomination path for a new judge, since that elected Idaho Democrat (who, of course, doesn’t exist) would no doubt be asked for recommendations. But, lacking much opportunity for the traditional forms of political vetting for an Idaho federal appointee, the politics around a federal appointment – particularly involving a judicial nomination – will get even more interesting. I’m betting a lot of telephone calls were made over the weekend on this subject.

Obviously, Republicans dominate the state’s politics, but just as obviously the person with the Constitutional mandate to do the nominating of Ed Lodge’s replacement is a Democrat. You can bet Senators Mike Crapo and Jim Risch, both lawyers, are working on a strategy to impact the appointment process, and in a more direct way than merely participating in the “advise and consent” role reserved to the Senate on such matters. Beyond those assumptions, we really slip into uncharted territory with the prospect of a new Idaho judge, particularly given the likelihood that the U.S. Senate will fall into Republican hands after November’s election. Presumably that would only give Idaho Republicans even more leverage over the appointment.

Idaho’s Senators could elect to approach the White House about forming a bi-partisan, merit-based panel to make a recommendation (as happened when Idaho Judge Lynn Winmill was nominated in 1995), but that would require both the Idaho Republicans and the Democratic administration to agree to work together and abide by the results of such  process, which may not be agreeable to anyone.

Risch has already hinted that he will invoke a little known Senate tradition – the blue slip – that allows a home state Senator to quietly block a nominee that a Senator finds objectionable for any reason. The Senator’s comment to the Coeur d’Alene Press last week mentioning the “blue slip” process wasn’t merely political analysis, but a signal about how long the new Idaho judge process will take, how complicated the decision can become, and the degree to which good old partisan politics will play a role.

The quaint, behind-the-scenes Senate practice “is not widely discussed, but it is a common practice in the United States Senate,” Risch told The Press. “Unless both U.S. senators sign the blue slip and return it to the judiciary and rules committee, that (nominee) will not leave the judiciary and rules committee.” Risch also said, as the paper reported, “that, by custom, every senator maintains some control of a nomination – with ‘veto power’ – over who is appointed from the senator’s state to the federal bench.”

Legal analyst and New Yorker writer Jeffrey Toobin says of “the blue slip” process: “Blue slips are not authorized or mentioned in the Constitution, in federal law, or even in the rules of the Senate. They are nothing more than a tradition, which has been in use off and on (mostly on) since the early twentieth century.”

In a piece analyzing the use of the Senate “blue slip,” Toobin predicted – in a case exactly like Idaho’s now – that two Republican Senators might just refuse to approve any nominee of a Democratic President, particularly when that President is Barack Obama. That begs the question of whether Crapo and Risch will just stall the selection of Lodge’s replacement until after the 2016 election hoping that a Republican ends up in the White House? It could happen.

No matter how this plays out, if there in fact is a nomination before the 2016 election, Ed Lodge’s replacement will have to pass muster, behind the scenes and quietly, with Risch (assuming he’s re-elected in November) and Crapo, just as happened with a Democratic president’s nomination of Judge Winmill the last time Idaho had a vacancy on the federal bench. You may recall that then-Senators Larry Craig and Dirk Kempthorne, as well as Gov. Phil Batt, embraced Judge Winmill’s appointment by President Bill Clinton.

Assuming the process works with only a high degree of partisanship, as opposed to a high degree of political obstruction, and that is a very big assumption, who then might Obama nominate who could survive the “veto power” of two Republican U.S. Senators? I’d guess that the White House would like to nominate a woman, and that should be a major consideration since Idaho has never had a woman U.S. District Judge. Let’s begin the vetting with that assumption.

Current U.S. Magistrate Candy Dale would have to be considered a serious candidate. Judge Dale, selected for her current Hon_Candy_Dalejob by a competitive, merit review process, is smart, well regarded by the state’s legal community and young enough to occupy a federal position for a long, long time. Her recent eloquent, courageous and, in my view, correct ruling overturning Idaho’s prohibition on same sex marriage no doubt got the attention of senior officials at the U.S. Justice Department. Those who do the administration’s vetting my well like Judge Dale’s guts and reasoning on that decision, but her ruling may also cut the other way with highly partisan Republicans. Still, on the merits, and given her experience on the bench and in private practice, Judge Dale would have to be on any administration short list.

The same can be said for the current U.S. Attorney in Idaho, Wendy J. Olson. A career federal prosecutor and
wolsonofficialStanford Law School grad, Olson was a widely praised choice for the U.S. Attorney position when she was nominated in 2010. She has a strong record prosecuting white collar crime and would also merit White House and Justice Department consideration because of her serious involvement in civil rights issues. She has conducted herself in a low-key, competent and non-partisan way in her current job and, like Judge Dale, is young enough to serve on the federal bench for a long time. If the White House wants to make it difficult for Idaho’s Republican senators to play overt politics with the federal judgeship, they could appoint either of this highly qualified, and not terribly political women. Either would make it difficult for Crapo and Risch to say “no.”

One more highly qualified woman who I suspect would sail through a confirmation process is former Idaho Linda Copple Trout
Supreme Court Chief Justice Linda Copple Trout. The first woman to serve on Idaho’s highest court, appointed by former Democratic Gov. Cecil D. Andrus, Trout has a first-class intellect, a solid record as a trial and appeals court judge and a winning personality. Justice Trout is also tough and no nonsense. It’s easy to see her commanding instant respect on the federal bench. She may not want the position, but it would be hard to argue that she isn’t qualified.

If the Obama Administration wants a relatively quick – and I mean relatively quick – process to replace the distinguished Judge Lodge, and wants to make Idaho history and appoint a woman, and also seeks a highly qualified candidate who is well respected in the legal community, and comes without a lot of partisan political baggage, they now have a short list.

There will be much about this important and far-reaching process that will be fascinating to watch. Not least will be whether the Obama Administration is smart enough and agile enough to manage the nomination and confirmation of a federal judge in a deeply red state so as to make it difficult – or even impossible – for the state’s two Republican Senators to throw sand in the political gears.

Tomorrow, I’ll make the case for a couple of other worthy candidates. But, feel free to forward this to Attorney General Eric Holder. Now that he has announced his departure once his successor is confirmed, he should have a little time to think about the Obama Administration’s legacy in Idaho. This appointment will be a pretty big deal out here and it could make history.

The Problem Post

Corruption at the Justice Department

When U.S. Attorney General Eric Holder, as now seems likely, is held in contempt of Congress in the next few days he will join a long list of the nation’s chief law enforcement officers who have run afoul of Congress and/or the law.

Whether the fast and furious controversy surrounding Holder is really sufficient to warrant finding him in contempt of Congress is a subject for another day. I will note that in most cases were an Attorney General has gotten seriously crosswise with Congress have been decidedly more bi-partisan affairs than Holder’s. History remembers when the AG offends both parties, not so much when the alleged offense seems more political than pernicious.

At that other extreme, consider the case of Attorney General Harry P. Daugherty. That’s him in the photo. Daugherty was an Ohio pol, campaign manager for Warren G. Harding and up until John Mitchell, Nixon’s AG who went to jail over Watergate, arguably the most corrupt head of the Justice Department in our history.

Harding, of course, is often at or near the bottom of those surveys of the country’s worst presidents. He can thank his friend Harry Daugherty for a good deal of that reputation.

Daugherty was forced to resign as Attorney General in 1923 after a bi-partisan Senate committee conducted a free-wheeling investigation into his leadership at the Justice Department.  Progressive Democratic Sen. Burton K. Wheeler of Montana led the Senate probe even though the Senate was controlled by Republicans. The nominal chair of the Senate Select Committee, a figure now lost to history, but worth remembering, was Iowa Sen. Smith Brookhart, a liberal Republican in the Teddy Roosevelt tradition. Brookhart and Wheeler knew each other, trusted each other and were pretty sure Daugherty was oily or worse. He was.

Wheeler’s investigation was sensational in the full tabloid meaning of the word, including testimony about gambling, girls and bootleg gin. The fact that the investigation of Attorney General Daugherty came in the wake of the equally sensational, and ultimately more important, Teapot Dome investigation, guaranteed that Wheeler and his motley cast of witnesses – a gumshoe, a call girl and various small-time confidence men – would get front page coverage. Daugherty resigned just ahead of an impeachment effort, but went out with his verbal guns blazing. The former Attorney General convinced himself Wheeler was a Communist agent – the foremost commie in the Senate, he said – and a seriously dangerous man. He wasn’t.

In the annuls of Senate history the Daugherty investigation helped establish an enduring principle that ironically allows California Rep. Darryl Issa to put Eric Holder through the wringer today. As part of the Senate investigation of Harding’s attorney general, Daugherty’s brother Malachi or Mal, a small-town, small-time corrupt Ohio banker, was called to testify before Wheeler’s committee. Mal Daugherty refused and was held in contempt. (He eventually went to jail for stealing from his own bank.)

Mal challenged the constitutionality of a Senate committee being able to compel his testimony, the case went all the way to the Supreme Court and the Court held in a unanimous ruling that the power of Congress to investigate and compel appearance by witness was an essential part of the legislative process. Thank a crook and a crooked Attorney General for the enduring principle of the Congressional investigation.

The job of Attorney General is arguably the most controversial in the Cabinet. Harry Daugherty was a small-time pol, likely profoundly corrupt, who should never have had the job. John Mitchell, Nixon’s finance guy, was similar with no particularly distinguished legal career and seeing the job as more about politics than policy or justice. Robert Kennedy, one of the most famous and powerful AG’s, was his brother’s political enforcer and chief confidante. (Can you imagine a president being able to get away today with having his brother at the Justice Department?)

Franklin Roosevelt’s first AG, Homer Cummings, was a political operative first and a not very skillful administrator second. Woodrow Wilson had three AG’s, including the infamous A. Mitchell Palmer, architect of the Palmer Raids that rounded up, mostly under highly dubious circumstances, various alleged radicals in 1919 and 1920 and set off the Red Scare.

The list of truly great Attorneys General is a good deal smaller than those who failed to distinguish themselves in the job. Judge Griffin Bell in the Carter years comes to mind as well as Nicholas Katzenbach in the Johnson Administration and Edward Levi, who distinguished himself in the Ford Administration.

Eric Holder may or may not be the target of an unfair and purely partisan election year attack, laced with just enough gun background noise to really appeal to the GOP base, but if he has studied the history of the Justice Department he should know that being AG almost always entitled the holder of the job to be vilified and hauled before Congress to account for all sorts of misdeeds both real and imagined. Perhaps the current Attorney General can take some comfort in knowing he’s not the first.