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Attorney with GOP ties, little trial experience could be Idaho’s next federal judge

Oct. 21, 2015 Updated Wed., Oct. 21, 2015 at 9:33 p.m.

Erika Malmen (Idaho Business Review / Idaho Business Review)
Erika Malmen (Idaho Business Review / Idaho Business Review)

BOISE – After a secretive process that spanned more than a year, Idaho’s two U.S. senators appear to be proposing that Idaho’s next federal district judge – a lifetime appointment – be a little-known, 41-year-old Boise attorney who failed to make the short list when she applied through a merit process for a state judgeship in May.

The two senators’ choice of a candidate to succeed long-serving U.S. District Judge Edward Lodge has been cloaked in secrecy from the start. They set no criteria for their selection, interviewed an array of candidates personally and have remained mum about their choice. But multiple sources say the U.S. Department of Justice is now conducting background checks on Erika Malmen in preparation for her nomination for the judgeship, and a national expert says that signifies the White House has at least tentatively signed off on the senators’ recommendation.

Sens. Jim Risch and Mike Crapo both said Wednesday the selection process is still ongoing. “The Idaho senators have seriously considered a number of qualified women and men in Idaho’s legal community and are in serious discussions with the White House about various candidates,” said Lindsay Nothern, Crapo’s spokesman. “They will not discuss any individuals who may or may not be under consideration.”

While Malmen isn’t well-known in the state’s legal community – her law practice has been largely limited to representing timber and mining interests and land developers – everyone involved in Idaho politics knows her husband. Jeff Malmen is one of the top GOP political operatives in the state, serving as chief of staff to two Idaho governors, including current Gov. Butch Otter. He has run top-level campaigns and now is vice president of Idaho Power, the prominent and politically powerful utility. Idaho Power has long been closely linked to Risch, who represented the company for years in his private law practice and who accepted $20,000 in donations from the utility’s political action committee for his U.S. Senate campaigns.

Crapo also has benefited from Idaho Power campaign contributions, receiving $12,500 from the IDA-PAC political action committee since 2000.

“This process is ongoing and there are many, many applicants, and there is a detailed vetting process at several levels going on for these applicants,” said Risch’s spokeswoman, Suzanne Wrasse. “The process has not been completed.”

Former Democratic Rep. Walt Minnick calls Malmen “very capable” but said he has no opinion on whether she’s qualified for the position.

“If you want to get a judge between now and the next election, this is the only way to do it in the current polarized environment in Washington,” Minnick said. “I think that the two senators have come up with a process that is consistent with the fact you’ve got divided government and a lame-duck president, that they want to result in a judge – obviously they want it to be a judge they’re comfortable with.”

Observers in Idaho’s legal community are worried.

“It does raise a concern that appointments would be purely political,” said Peg Dougherty, co-chair of the Judicial Recruitment Committee for Idaho Women Lawyers; the group said later that her comments don’t represent any official position of IWL. The group encourages women lawyers in Idaho to apply for judgeships and raised alarms last spring when news emerged that the two senators had interviewed only four men for the position. Idaho is the only district in the 9th Circuit and one of just two in the nation with no female federal district judge.

Since then, Risch and Crapo publicly announced that they were interviewing both men and women. An array of prominent Idaho judges and lawyers of both genders were interviewed. 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.

“I think this administration is likely to appoint a woman, and maybe they were told, ‘Find us a woman candidate,’ ” Dougherty said. But she noted that other experienced female candidates, including at least one sitting judge and the state’s top federal prosecutor, were interviewed. “I think it just says that it is political, and it’s not based on qualifications.”

Erika Malmen applied for a state judgeship in May, when long-serving Idaho Court of Appeals Judge Karen Lansing retired. Malmen was one of 12 applicants who were screened, interviewed by the Idaho Judicial Council and rated by members of the Idaho State Bar in a confidential survey. She didn’t make the short list of four, which included three women and one man. The position went to then-3rd District Judge Molly Huskey.

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 he was surprised by Malmen’s apparent front-runner status.

“The fact that she competed for a state judicial position and didn’t get it is maybe telling,” Wheeler said. However, he said, if background checks are underway, that means the White House “has tentatively signed off on the nomination.”

Lodge took senior status in early July, a move he announced in September 2014. Now, Idaho has just one federal district judge left – Chief U.S. District Judge B. Lynn Winmill – and no other senior judges to help pick up the court’s huge caseload.

“It sounds as if the White House just made a guess that it’s better to have someone in the seat than basically leave poor Judge Winmill to work himself to death,” Wheeler said.

Malmen didn’t return calls seeking comment.

Dougherty noted that in 1995, Idaho’s senators chose to have a bipartisan panel vet candidates when Winmill was appointed. She said she worries “litigants are going to suffer” if a judge is appointed who’ll require a steep learning curve.

Betty Richardson, former U.S. attorney for Idaho and a former Democratic candidate for Congress, said Idaho’s federal bench “has long been one of the strongest in the country.”

“Were the president to make the appointment the senators appear to have recommended, it would be a departure from that tradition,” she said. “The senators, both lawyers, had a long list of very well-qualified applicants – both Democrats and Republicans. … It would seem the senators are eager to reward a political ally at the expense of the federal bench, the federal bar, and – most importantly – the people of Idaho.”

Wheeler said about two-thirds of federal judicial nominees these days are already sitting judges at lower levels, while one-third come from private practice.

“Almost every federal judge comes into office not knowing about many of the cases that will come to them,” he said. “There’s a learning curve for all of them. So I wouldn’t say that her selection, because she has a steep learning curve, is necessarily unusual or a threat to the system.”

He noted that there are no particular qualifications for federal judges – they’re not even required to have a law degree.

Wheeler added that politics is always a consideration in a judicial appointment.

“Senators make different choices. They all regard judgeships as, on the one hand, a real patronage plum that they like to hand out to people that they want to give a goodie to,” he said. “On the other hand, they don’t want to stand for re-election and have someone saying you encouraged a bunch of stumblebums to go on the bench.”

Asked what makes a good candidate to be a federal judge, Wheeler said the most important quality is judicial temperament.

“You want someone who’s a good lawyer and a student and can learn things fairly quickly,” he said. “They don’t really have to have an awful lot of trial experience. Instead, they should be good managers who can keep on top of litigation, manage a docket.”

Where judicial temperament comes in, he said, is in being able to decide cases fairly on the law and facts.

“There are enough cases where the law and the facts aren’t clear,” he said. “They need to have a fairly well-defined notion of good public policy, for those relatively rare cases in which the precedents and the facts don’t point to an obvious conclusion.”

This story has been changed to reflect a Thursday statement from Idaho Women Lawyers that comments from Peg Dougherty, the group’s co-chair of judicial recruitment, don’t represent any official position of the group.

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