First candidate out, second being considered, but Idaho still has no new federal judge

BOISE – A Boise attorney who was a controversial prospect for Idaho’s vacant federal judgeship is no longer being considered, multiple sources say.

Meanwhile, down to just one U.S. District Court judge, the court in Idaho is bringing in visiting judges from Colorado, Washington, California and elsewhere to hear Idaho cases while the court awaits an appointee to replace longtime Judge Edward Lodge. It’s a situation Idaho’s lone sitting federal judge calls “a crisis.”

Lodge took senior status on July 3 and has reduced his caseload to 75 percent; he announced his plans in September 2014. In July, the federal court system declared a “judicial emergency” in Idaho because of the shortage of judges.

Now, multiple sources confirm that Boise attorney Erika Malmen, after several months of vetting, is no longer being considered for the lifetime appointment.

Instead, the White House is vetting an alternate candidate proposed by GOP Sens. Mike Crapo and Jim Risch, Idaho 5th District Administrative Judge G. Richard Bevan. He’s undergone some of the same federal background checks and interviews that Malmen underwent in the fall. But it’s unclear when a nominee could be named. The Senate will soon recess for its winter break.

“I’m very hopeful that they will have somebody nominated within the next few months, so that we can get someone on board and can quit using so many visiting judges, and can get our caseload back to a level of manageability,” said Chief U.S. District Judge B. Lynn Winmill, who recently told the Idaho Judicial Conference of the steps the court is taking to handle the load in the meantime. “I do think it’s a crisis,” he said.

Russell Wheeler, a fellow with the Brookings Institution and an expert on the selection of federal judges, said President Barack Obama hasn’t nominated a new district judge since September, and the average time from nomination to confirmation during his administration so far is 215 days. That compares to the median time between nomination and confirmation in the Johnson and Nixon administrations of about 25 days, during “two of the most tumultuous presidencies we’ve seen in the last century,” Wheeler said.

“So it’s not just Idaho – the whole process is deteriorated,” he said.

The use of visiting judges is “always something you’d like to avoid if possible,” Wheeler said, because of a sense that “it’s better to have judges who are part of the local legal culture deciding cases.”

He said the Idaho court’s need is pressing. “It’s not as if this guy’s filling the 28th judgeship on a 28-judge court,” Wheeler said. “He’s filling the second on a two-judge court.”

Risch and Crapo have held a lengthy and secretive process in which they’ve personally interviewed an array of applicants. After an outcry from female members of the Idaho Bar last spring when news surfaced that they had interviewed only four men for the appointment, the two senators publicly announced that they were interviewing both men and women, and several prominent female Idaho attorneys were subsequently interviewed.

Idaho is the only state in the 9th Circuit that’s never had a female U.S. district judge; it’s one of just two in the nation.

Federal district judges are nominated by the president and confirmed by the Senate. But under current Senate practices, the two home-state senators have a virtual veto over any White House nominee, forcing them to work together.

In July, Idaho’s two senators said in a joint statement that they and the White House wanted to “find the best person to serve Idaho who was acceptable to the three persons who must agree to the choice, namely the president and the two of us.” In August, background checks began on Malmen.

Malmen, 41, was a controversial choice, in part because she failed to make the short list when she applied through a merit process for a state judgeship in May. Her law practice has been largely limited to environmental administrative law, representing timber and mining interests and land developers outside the courtroom.

James Ruchti, a board member of the Idaho Trial Lawyers Association and a former Democratic state representative from Pocatello, said it’s preferable to have someone with extensive litigation experience, “so they know how to manage the cases that are in front of them and do it in a way that’s fair to all parties.”

While Malmen is not well known in the state’s legal community, she has powerful political connections, as her husband, Jeff Malmen, is one of the top GOP political operatives in the state.

Jeff Malmen was chief of staff to two Idaho governors, including current Gov. Butch Otter, has run top-level campaigns, and is now a vice president of Idaho Power. That utility has long been closely linked to Risch, who represented it for years in his private law practice and has received $20,000 in campaign donations from the utility’s political action committee for his Senate campaigns. Crapo also has benefited from Idaho Power campaign contributions, receiving $12,500 from the IDA-PAC Political Action Committee since 2000.

Ruchti said he’s been concerned about the process “because it was so secretive. … But over time, I think because of the backlash against the process being closed, we’ve finally gotten to the point where we have a really good nominee.”

Bevan, 56, has served as a 5th District state judge for the past 12 years, and previously practiced law in Twin Falls. He also served as Twin Falls County prosecutor, a position to which he was elected as a Republican. Bevan holds both bachelor’s and law degrees from Brigham Young University; his bachelor’s degree was in business management and finance.

Ruchti said, “There are a lot of people who are qualified for that position, female, male, Republican, Democrat. But I do think Judge Bevan is an excellent choice.”

The vetting process for a U.S. district judge appointee includes FBI background checks and a review by the American Bar Association, which rates candidates as qualified, well-qualified or not qualified. The ABA’s process, conducted by a 15-member committee that has no Idaho members, requires applicants to submit a detailed listing of their judicial and court experience and includes interviews and other reviews. It’s rare that a nomination moves forward without a qualified rating from the ABA. The ratings aren’t publicly released unless a nominee is named by the White House.

Attorneys in Idaho have reported receiving ABA questionnaires about Bevan in the past three weeks, as part of his vetting for a possible nomination. Bevan had no comment on Friday.