The New York Times reported recently on a little noted aspect of Barack Obama’s legacy that will have lasting impact for the country.
As the paper’s Jeremy Peters wrote earlier this month, “For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.” Peters was writing about Obama’s appointments at the the federal Court of Appeals level, but the same impact applies more broadly to federal District Courts.
In fact, the U.S. Senate has virtually eliminated the old back log of judicial nominations, so much so that earlier this summer there were few pending judicial nominations in the confirmation pipeline. Part of the reason for that is apparently the fact that some Senate Republicans – particularly from states with two GOP Senators – have simply refused to engage in the time-tested process of working with the White House to get potential judicial appointees into the cue.
“Texas Sens. John Cornyn (R) and Ted Cruz (R) have 10 empty court seats without nominees,” Jennifer Bendery reported in June, and one of those Texas positions has been “vacant for more than 2,000 days; another is approaching 1,100 days. Making matters worse, six of the 10 open judgeships in Texas are ‘judicial emergencies,’ meaning the workload for other judges is now more than 600 cases. For seats vacant more than 18 months, judges are handling 430 to 600 cases.”
Since that was written, Cornyn and Cruz have helped advance at least three candidates to the Senate for consideration, but the long wait continues in a number of states.
As I noted in yesterday’s Post, one key question about the pending vacancy on Idaho’s federal bench – my friend Randy Stapilus has made the same point – is whether the state’s two GOP Senators will work with the Obama Administration to identify a candidate to replace long-time Judge Edward Lodge, or whether the Senators will run-out-the-clock on the Obama presidency, while hoping a Republican ends up in the White House to nominate federal judges in 2017. If Senators Mike Crapo and Jim Risch adopt a run-out-the-clock strategy, Judge Lodge’s decision to assume “senior status” next summer will, even in the best case scenario, leave the Idaho courts shorthanded for 12 to 18 months, or longer. More on that later.
Time for a Woman…
Also yesterday, I suggested three highly-qualified, and largely non-political women who might make the Idaho selection process easier for both the Republican Senators and the White House. U.S. Magistrate Candy Dale, Idaho U.S. Attorney Wendy Olson and former Idaho Supreme Court Chief Justice Linda Copple Trout would be superb members of the federal bench and worthy successors to Ed Lodge. No doubt there are other Idaho women who have the qualifications, talent and temperament to be good federal judges. It is also clear that it is past time to have a woman on the federal bench in Idaho – Idaho has never had a woman as a federal judge – and for that matter it is past time to have women back on the Idaho Supreme Court. Idaho’s highest court once had two women among the five justices. Now there are none.
The National Women’s Law Center calculates that only 32 percent of the nation’s federal District Court Judges are women, and that number remains low despite the fact that, at least since 1992, women have made up at least 50 percent of the nation’s law school graduates. Idaho is one of only nine federal courts in the country that has never had a women district judge. As I said, it is long past time and no one can truthfully argue there are not qualified and, in fact, exemplary candidates.
The appointment and confirmation of federal judges has been one of the most contentious activities in our political system. Both parties have been guilty of the most blatant type of partisanship when it comes to staffing the supposedly non-partisan federal courts. It would be nice to think that Idaho, with a history of outstanding federal judges including Lodge, Lynn Winmill, Ray McNichols and Steve Trott to name just a few, could find a way to set the partisanship aside and identify and confirm a truly able federal judge. Stay tuned.
OK…and Some Men…
While appointing a highly qualified woman makes abundant sense to me, let’s play the “what if” game and consider four male possibilities that seem to me highly qualified, capable and possessed of the right temperament to do a fine job as a federal judge.
If women are badly under represented on the federal bench, so too are Americans of color. Idaho Court of Appeals Chief Judge Sergio Gutierrez would be another historic appointment. The Judge has a compelling up-from-poverty story that took him from the Job Corps to a high school GED certificate to the University of California Hastings School of Law. Then-Gov. Cecil Andrus put Gutierrez on the District Court bench in Canyon County in 1993 and Dirk Kempthorne appointed him to the Court of Appeals in 2002. Gutierrez is a judge-as-role-model, a quiet, smart and decent fellow. He would be an historic and inspired choice for the federal bench and would shatter some old and persistent barriers.
I also think the current Chief Justice of the Idaho Supreme Court, Roger Burdick, is a truly fine judge, a stand-up guy, and Burdick could 
probably be voted the funniest federal judge in the country. The guy has a seriously good sense of humor, often displayed in a delightful, self deprecating manner. Burdick has been a prosecutor, a public defender, worked in private practice, served as a state district court judge and once oversaw the massive Snake River Basin adjudication. Burdick could not only do the federal job, he would do it very well.
Since I’m a truly bi-partisan guy, I would suggest that current Idaho Republican Attorney General Lawrence Wasden is another qualified and talented guy who has show a real and important independent streak during his time in public office. Wasden has been a champion of open government, is a work horse, rather than a show horse, and has had the political courage to go against the prevailing sentiments of his own party more than once. If the federal judge process in Idaho eventually requires a nominee who could serve as a “compromise” candidate to bridge ideological gaps, Wasden could fill the bill. Along with retiring Secretary of State Ben Ysursa, Wasden is among the most non-partisan of the state’s elected officials.
Last, but hardly least, the politicians make these decisions could benefit from taking a long, hard look at the former Dean of the 
University of Idaho Law School Don Burnett. No knock against the new president of the University, but Burnett, who served as “interim” president of the U of I, would have been an inspired choice to run the state’s land grant university. Burnett has been a law school dean at the University of Louisville, as well as Idaho, was an original member of the Idaho Court of Appeals, appointed by Gov. John Evans, and is both a scholar and a gentleman having graduated from the Universities of Chicago and Virginia. Burnett is a deeply thoughtful legal scholar, who writes and speaks with a wonderful command of the law, history and common sense. What more could you want in a judge? Some might argue that Burnett is nearing the end of his very accomplished professional life, but I would argue that a few more years as a federal judge would be the perfect capstone to his already distinguished career in public service.
What’s Right, Rather than Political...
It has been nearly 20 years since Idaho has had a vacancy on the U.S. District Court. The decision about who replaces the respected Judge Lodge is about as important a public policy decision as the state has seen in some time. Perhaps as much as ever before it is falling to the nation’s courts to sort out society’s most complicated issues, often because partisanship and narrow interest has paralyzed the Congress. If partisan politics trumps what is best of Idaho, the decision on a replacement for Judge Lodge could drag on for months and months. It shouldn’t.
In February of this year, Idaho’s Republican Senators introduced legislation that would create a third District Judge position in Idaho. At the time, Mike Crapo said: “The need for an additional judge in Idaho has been widely recognized for years. The District of Idaho has been working to meet the needs of the district while facing growing personnel and financial challenges. Advancing this productivity by adding an additional judgeship to the court would help ensure effective access to justice for Idaho’s increasing population.” The Senators point out that its been 60 years since a second federal judge was authorized for Idaho, which argues both for expeditiously filling the new vacancy and passing legislation to create another position.
I have suggested seven potential candidates – three outstanding women, four highly qualified men. There are certainly more out there. Here’s hoping for an open, bi-partisan, efficient process that produces another Idaho judge as good as Ed Lodge has been.