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Idaho senators’ secret selection process for new fed judge raises questions, no women interviewed

MONDAY, APRIL 27, 2015, 4:44 P.M.

BOISE – It seems that women need not apply to the federal district court bench in Idaho.

A secretive selection process that Idaho’s two senators have launched to find a replacement for U.S. District Judge Edward Lodge appears to be ignoring female candidates.

Idaho is the only state in the federal 9th Circuit that has never had a woman judge on the U.S. District Court bench. Lodge announced last September that he will take senior status on July 3.

“We are extremely concerned,” said Peg Dougherty, co-chair of the Judicial Recruitment Committee for Idaho Women Lawyers.

Multiple sources say Sens. Mike Crapo and Jim Risch have interviewed just four candidates – all men.

“Are the senators even aware that Idaho is the only state without a woman on the federal court bench at the district level?” Dougherty asked. “If they are aware, do they care?”

Neither Crapo nor Risch would comment.

“The judgeship application process is entirely confidential and remains ongoing,” said Risch’s press secretary, Suzanne Wrasse.

“The senators are working through their confidential process,” said Crapo’s press secretary, Lindsay Nothern. “That’s all I have.”

At least five prominent female Idaho attorneys, including one sitting judge and two high-ranking prosecutors, applied for the position, but have not been interviewed. They haven’t heard anything since their applications were submitted, they say.

“I submitted my judicial questionnaire in December, and was not contacted whatsoever at all, period,” said Boise attorney Terri Pickens Manweiler. “I heard through the grapevine that I was too progressive for the position, which is patently absurd. I’m about as middle-of-the-road as you can get, which is exactly what the position needs.”

Wendy Olson, U.S. Attorney for Idaho, said she, too, completed the questionnaire that Risch and Crapo made available to interested applicants via email. “I did that in January,” she said. “And that is the last I have heard. I got a reply email saying they received my application, but other than that, I’ve not been contacted, not heard anything from the senators.”

U.S. Magistrate Judge Candy Dale confirmed that she, too, submitted her application; she did so in December. She also hasn’t been contacted since then. Dale is widely considered to be a front-runner for the position due to her seven-year record on the court. But she’s also the author of the court decision that overturned a ban on same-sex marriage in Idaho, which Idaho Republicans decried.

Multiple sources say the four male finalists interviewed for the position include two state district judges, and two Idaho attorneys with strong GOP ties – one a Republican elected official, the other the general counsel and a member of the senior management of Melaleuca Inc. That eastern Idaho company contributed $1 million to a super-PAC backing Republican Mitt Romney’s presidential campaign.

All four men declined comment.

The Idaho senators are only making a recommendation – the nominee will be selected by President Barack Obama, a Democrat.

“The process is inherently political,” said Shaakirrah Sanders, a professor with the University of Idaho College of Law.

Russell Wheeler, a fellow with the Brookings Institution, former deputy director of the Federal Judicial Center and an expert on the selection of federal judges, said of the senators, “They’ve had plenty of time to get a nominee up there, if they were of a mind to.”

If the selection process were delayed beyond July because the senators put forth candidates that weren’t acceptable to the Democratic president, Wheeler said, “It’s really doing a disservice to the district. It’s the litigants in the district, especially the civil litigants, who are going to feel the brunt of this.”

Idaho is one of just three states with only two U.S. district judges; it hasn’t gotten an additional judgeship in 60 years, though caseloads have soared. If Judge Lodge takes senior status, only U.S. District Judge Lynn Winmill would be left. “Winmill is going to be working his head off,” Wheeler said.

Plus, he said, failing to consider female applicants is “just counter-productive. Idaho I know is a fairly conservative state. But that’s getting to be a black eye in this day and age, when a court is populated solely by white males.”

Judge Dale was the first woman appointed as a U.S. magistrate judge in Idaho, in 2008. Magistrate judges are appointed by district judges through a merit-selection process and serve eight-year terms; they don’t preside over felony trials, and can adjudicate civil cases only with the consent of the parties. U.S. district judges are lifetime appointees.

Dougherty said Idaho Women Lawyers has made a concerted effort in recent years to encourage qualified women to apply for judgeships, and bemoans the lack of female judges in the state, including an Idaho Supreme Court that’s currently all-male.

As for the U.S. District judgeship, Dougherty said the Idaho senators have provided no information about the selection process or what they’re seeking in a candidate.

Wheeler, at the Brookings Institution, said in about 20 states, senators have set up “vetting committees” to encourage and review applications for federal judgeships in an open, often bipartisan, process. That’s what Idaho did when it last got a new federal district judge, Judge Winmill, in 1996; he was appointed by Democratic President Bill Clinton.

The state’s current process is at the other end of the spectrum, Wheeler said. “I can’t say that what’s going on in Idaho is unique, but a lot of other states’ senators are on the face of it more transparent.”

In the past decade, home-state senators have taken an increasing role in selection of federal judges, Wheeler said. There’s an unwritten rule in the Senate Judiciary Committee requiring both home-state senators to complete “blue slips” saying they approve of nominees for federal judge in their state; without those slips, “there’ll be no further proceedings,” he said.

“It really gives home-state senators veto power over the president’s nominee,” he added.

But the process also can lead to big political battles, as occurred in Georgia last year, when the two senators insisted on candidates that weren’t acceptable to Democrats and the civil rights community in their state. One withdrew after the Senate refused to consider him; the other was confirmed, but only after a fight.

“They’re playing more hardball,” Wheeler said. “It’s not a pretty picture, but it’s a reality.”



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