The United States Senate this week confirmed a new judge, Patricia Millett, to a seat on the U.S. Court of Appeals for the District of Columbia. That court is, after the Supreme Court, arguably the most important federal court in the nation. Millett’s confirmation had been stalled for weeks over a partisan dispute, not about her qualifications, but basically over whether a Democratic president would be allowed to make an important appointment to an important federal court.
That standoff helped precipitate the recent change in Senate rules that eliminates the filibuster as a tool of the minority to thwart a president’s federal court and executive branch nominees. When it finally happened the vote to confirm the new judge was mostly along partisan lines, two Republicans – Lisa Murkowski and Susan Collins – did vote to confirm.
Regrettably, in my view, partisan politics – and both parties bear some guilt – has taken on a completely outsized role in the selection and confirmation of federal judges. And, remember in the case of new Judge Millett, hardly anyone questioned her strong qualifications for the job. She has been a partner at the white shoe D.C. law firm Akin Gump, she worked at the Justice Department in both Republican and Democratic administrations and argued 32 cases before the Supreme Court. She’s qualified, but partisanship was the stage manager in this case, and unfortunately, has been in many others in the recent past.
Until the 1920’s appointees to the Supreme Court didn’t even go before a Congressional committee for a confirmation hearing. When former Utah Sen. George Sutherland was nomination for a position on the Supreme Court in 1922 his nomination went to the Senate one morning and he was confirmed that afternoon. Admittedly that pace may have been too light on the “advise and consent” role of the Senate, but now days it’s not uncommon for a judicial nominee to hang in confirmation no-man’s (or no-woman’s) land for months. It has become an awful system that will over time further erode public confidence in an independent judiciary and it doesn’t have to be this way.
A small, long ago example from Idaho involving Federal District Judge Edward Lodge (that’s Judge Lodge in the photo) makes the case that judges – and sometimes great judges – are indeed “made” by politicians acting as politicians, but that politics – if practiced wisely – can also help ensure the right man – or woman – ends up in the right job.
Ed Lodge has been on the Federal District Court in Idaho since 1989. He was nominated by Republican George H.W. Bush and confirmed unanimously by the Senate. The Judge, widely respected, even revered by those who know him and practice before him, just passed 24 years on the federal bench and all told Lodge has been a judge in Idaho for half a century. But, it’s Ed Lodge’s time before he came to the attention of the first President Bush – we can thank Sen. Jim McClure for that – that really counts in this little story.
In 1965, Lodge was laboring in relative obscurity as a probate judge in Canyon County, Idaho – Idaho did away with probate judges during judicial reorganization years ago – when a vacancy came open in the state District Court bench in Canyon County. It dawned on a couple of young, northern Idaho legislators – Ed Williams from Lewiston and Cecil Andrus from Orofino, both Democrats, that they might be able to use the Canyon County vacancy to engage in a bit of political mischief at the expense of Republican Gov. Robert E. Smylie and also help create a new judge at the same time.
Smylie, a mover and shaker in national GOP politics, was out of the state for a few days as was his habit; a habit that helped get him in trouble with voters a year later, which meant the governor had left the tending of the state store to his Democratic Lt. Gov. William Drevlow, a old-style party warhorse who hailed from Craigmont. In Idaho, by virtue of the state constitution, when the governor is physically absent from the state the lieutenant governor assumes the governor’s full powers, including the power, if he chooses to use it, to make appointments. If you understand politics perhaps you see where this is going.
According to Andrus, his good friend Williams came up with the idea of trying to convince Lt. Governor Drevlow to act in Smylie’s absence and fill the Canyon County judicial vacancy. But who to appoint? The two north Idaho lawmakers consulted with Rep. Bill Brauner of Caldwell, also a Democrat, and a well-regarded local attorney. (Yes, Canyon County did once upon a time have Democrats in the Idaho Legislature.)
Andrus recalls that another prominent Canyon County attorney and Democrat, Dean Miller, was brought into the discussions and it was Miller who suggested strongly that able young Ed Lodge, who Miller knew personally and professionally, would be a superb candidate to fill the vacancy. All the players in this little tale, save for Andrus and Lodge, are no longer with us to confirm or deny, but Andrus claims none of them were really sure at the time of Lodge’s politics. Lodge was being touted by Democrats who knew him well, after all, and only later did the legislators learn that Republican blood ran in Lodge’s lawyerly veins. Even better they thought. When the stuff inevitably hits the fan the conspirators could fall back on the fact that a Republican-leaning judge had been appointed by a Democrat. What could be more bipartisan?
But the really key thing here is that the mischief makers were not looking simply to make mischief, although that was clearly a motivation, they also wanted to see a capable judge appointed. Politics was played, but the goal of putting a capable candidate on the bench was also achieved.
“We convinced Bill Drevlow, maybe with a little help from John Barleycorn,” Andrus said, “to make the appointment. He knew it would damage his relationship with Bob Smylie, but he really didn’t care. We knew Smylie would be livid, since he must have had his own candidate.” And, one suspects, that didn’t bother the legislators either.
Judge Lodge was appointed to the state court vacancy by Drevlow – the youngest district judge in Idaho at the time – where, by all accounts, he immediately began to acquit himself with real distinction winning awards as the state’s top trial judge and serving for years as the administrative judge of the district. After a short stint as the state’s federal bankruptcy judge President Bush came calling and Lodge went to the federal bench some twenty years after his Democratic benefactors plotted to get him appointed to the Idaho court.
Andrus remembers Smylie being peeved about the whole thing, but as the man who would go on to be elected governor of Idaho four times told me recently, “Smylie could never argue with the fact that the cream rises to the top. And time has proven that Ed Lodge is one of the two or three best federal judges Idaho has ever had.”
Any way you analyze it Ed Lodge has had a distinguished and impactful career. He presided over the Ruby Ridge case, Claude Dallas was in his courtroom, financial responsibilities under the Superfund law in the Silver Valley were hashed out under his watch, and the U.S. Department of Energy was held to account for cleaning up the Idaho nuclear waste legacy of the Cold War. Judge Lodge was honored last summer for his his service and for the longest judicial tenure in Idaho history. His is quite a legacy.
Is there a moral to this little story of political intrigue? It’s entirely possible that Ed Lodge, even without the bipartisan push he got from a bunch of mischief making young Democrats in 1965, would have amassed a distinguished legal career. He might well have made it to the state district court by another route and been ultimately appointed to the federal bench to preside over all those important cases. Who is to say?
Perhaps the only moral, as the old saying goes, is that politics does – or can – make strange bedfellows. And once in a while – not as often as it once did unfortunately – strange bedfellows conspire to help along the career of an able young man, who given the chance became a truly distinguished judge and helped write the history of Idaho for the last half century.
Next time you read a news report about some judicial decision that identifies the judge involved as an “appointee of George Bush” or as a “nominee of Bill Clinton,” think about Judge Lodge. There is more to most judges – and there should be – than the partisan label attached to the person who appointed them. And think about the new and highly qualified D.C. Circuit Court Judge Patricia Millett who came so close to being denied a chance to serve at all because of, well, just politics.
There will always be “politics” involved in the appointment of judges. It’s been that way since John Adams and Thomas Jefferson fought over the shape of the federal judiciary, but too much emphasis on politics must inevitably lead to a too politicized judiciary, which only damages public confidence in the judges and our judicial system. Ed Lodge got his start on the merits. An able young man with supporters on both sides of the aisle then proved over the course of a distinguished career just what he was able to do.
I like to think that is what we call the American Way.