Law prof: Delay in replacing federal judge not fair to Lodge, bad for system; says senators at fault

A law professor at the University of Richmond who watches federal judicial appointments says U.S. District Judge Edward Lodge gave plenty of notice that he planned to take senior status on July 3 – he announced it last Sept. 24. Carl Tobias, Williams Professor at the University of Richmond School of Law, said Idaho’s two GOP senators are at fault for taking so long to recommend possible replacements to the White House, resulting in today’s declaration of a judicial emergency in Idaho, which now has only one full-time federal district judge.

“Judge Lodge is really well respected and he gave them plenty of time, and they just frittered it away, they didn’t take advantage of it,” Tobias said. “If they’d moved quickly when he announced and formed a committee or whatever the vetting process was, we wouldn’t be where we are now. That’s the proper way to do it. Judge Lodge isn’t the one at fault. He gave plenty of notice.”

Idaho Sens. Mike Crapo and Jim Risch began interviewing potential nominees over the winter, and reportedly have just recently submitted four names to the White House for consideration, but they’re not commenting. They’ve said all along they planned a secret process in which only they would review the potential nominees.

“If they want to wait for 2017 for some Republican president to appoint, I think it’ll get ugly,” Tobias said. “I think at some point the Idaho Bar is going to get up on its hind legs and say, ‘This has got to stop.’ … It’s not fair to people who are litigating cases and companies that are litigating cases in federal court.” The civil docket will suffer the most, he said, because criminal cases take precedent.

Idaho has no senior district judges other than Lodge, because all of its past ones have died; the last one, Judge Harold Ryan, died in 1995. The only other alternative for handling the court’s caseload, Tobias said, is bringing in judges from other jurisdictions, which parties typically don’t like. “You’d rather have your own judges,” he said. “And you can’t run a court very long in that way.”

At this point, Tobias said, if the senators and the White House were to agree on a nominee, there still would be many months of delay ahead. “It takes three to five months after submission of a name to the White House for a name to come out, because you need the FBI check, you need the ABA evaluation,” along with other steps, he said. “The quickest I’ve seen that move is like maybe two months.” And the Senate’s August recess is looming. “The senators could move it,” he said. “They could work with the White House and get somebody people could agree on and then push the leadership in the Senate because of the extreme situation.”

“I think the pressure will really build with the emergency vacancy and the lawyers in the state not being able to get trial dates,” Tobias said. “It’s not good for the courts, it’s not good for the people who need to get their cases resolved, not good for the lawyers, not good for judges.”

Plus, he said, the situation is unfair to Lodge, 81. “It means he doesn’t get senior status,” Tobias said. “The whole point of senior status is to get a half-load and bring on new blood and help refresh the court. … He’s such a devoted public servant, I’m sure he’ll just bear up and continue to do it. But that’s just not fair to him or for the system, really.”