Carl Tobias: Senate must vote on Idaho judge

On April 6, President Barack Obama nominated David Nye, a state court judge in Idaho, for a vacancy on the U.S. District Court. Nye is a well-qualified, mainstream nominee who enjoys the powerful support of Idaho Republican Sens. Mike Crapo and James Risch.

The Senate Judiciary Committee approved Nye on July 14 without dissent. However, the nomination has languished on the floor ever since, principally due to GOP leaders’ refusal to allow his confirmation debate and vote. Because Nye is an experienced, consensus nominee and the district desperately needs this vacancy filled, the Senate must promptly conduct his final debate and vote.

The Idaho district has one vacancy in two active judgeships, meaning it lacks 50 percent of its active judicial complement, which frustrates prompt, inexpensive and fair dispute resolution. Because criminal prosecutions receive precedence under the Speedy Trial Act, litigants participating in civil suits experience difficulty securing trial dates and concluding their litigation. Resolving cases without half of the judgeships authorized correspondingly places increased pressure on the court’s two judges.

Edward Lodge, the second judge, who assumed senior status in 2015, is managing a large caseload. The jurist carefully provided nine months’ advance notice before assuming senior status. However, the Idaho senators and the White House consumed 19 months negotiating before they finally agreed on Nye.

The federal court system declared Lodge’s vacancy a “judicial emergency” because of its protracted length. The district’s caseloads are 20 percent higher than the national average.

In nominating Nye, the president praised his excellent legal career, voicing “confidence that he will serve the American people with distinction.” The White House news release observed that Nye has “served as a District Judge for Idaho’s Sixth Judicial District Court since 2007” after practicing for two decades with “Merrill & Merrill, Chartered, where he specialized in medical malpractice and insurance law.”

However, eight weeks passed before the Senate Judiciary Committee conducted Nye’s hearing, on June 21. The Idaho senators introduced him at the session, praised Nye’s strong qualifications and called for prompt Senate confirmation. That hearing proceeded smoothly, and the senators who asked questions seemed satisfied with Nye’s responses. On July 14, the panel approved him on a voice vote with little discussion and no controversy.

Since July, the nomination has stalled. Senate GOP leaders asserted that they are returning the upper chamber to “regular order.” Nonetheless, Nye and many other highly qualified, moderate nominees have waited months for debates and votes. The Republican Senate majority has refused to even consider Judge Merrick Garland, the experienced, mainstream Supreme Court nominee Obama tapped in March. The GOP argued that the “people must decide” by electing a new president who would nominate. This approach was unprecedented and violated regular order.

Sens. Crapo and Risch have requested a swift floor ballot for Nye, yet Sen. Mitch McConnell, R-Ky., the majority leader, has failed to arrange it. Several Democratic senators have sought unanimous consent to vote on many district nominees who need final votes, but Republicans have objected. If the GOP follows regular order, Nye could receive a floor ballot soon.

The Idaho senators have constantly reiterated their support for Nye, even after the election, expressing hope the Senate would confirm him in the lame duck session that opened Nov. 15 and pledging to push for renomination if that did not happen. The Idaho director of the Trump for President campaign believed that “Trump would support” the senators’ process and Nye. Thus, it would be wasteful to restart the process and deprive Idaho of a new judge for months.

It is past time for the Senate to vote on David Nye. He is a strong consensus nominee. Moreover, the district must have all of its active judges to deliver justice. The district’s judiciary as well as individuals and businesses litigating in federal court deserve a full bench. Thus, senators must conduct his debate and vote before they adjourn.

Carl Tobias is the Williams Chair in Law at the University of Richmond.