BOISE — When U.S. District Judge B. Lynn Winmill announced in January that he’d take senior status Aug. 16, he had a plan: He’d continue to hear a full caseload, but by then, Idaho could have a new district judge to replace him, effectively giving the state the third judge it’s badly needed for decades.
“We desperately need the help,” Winmill told the Idaho Press.
But seven months later, there’s been no word from the White House about a nominee for Idaho’s now-open second federal judgeship, though the state’s top Democratic elected officials interviewed candidates last winter and submitted an all-female short list of four nominees to the Biden Administration on March 2.
“We had exceptionally qualified candidates, really they were all superb,” said House Minority Leader Ilana Rubel, D-Boise. “We felt like Idaho would be extremely well served with any of these folks on the bench.” But Rubel said she’s heard only “radio silence” from the White House.
Traditionally, the home-state senators have had a big say in U.S. district judge nominees, with a “blue slip” tradition honored by the Senate as recently as the Obama Administration giving those senators a virtual veto over any nominee. But that system was jettisoned under the Trump Administration, and it’s no longer clear what role the Idaho senators play in the nomination. The Senate must confirm any nominee, but Democrats hold a razor-thin majority there, and confirmation takes just a simple majority.
“We have had several preliminary conversations with the White House, and are working along their timeline,” said Lindsay Nothern, communications director for Idaho Sen. Mike Crapo. “We remain hopeful that we can find consensus about a preferred candidate for the position.”
Sen. Jim Risch’s office had no comment.
President Joe Biden has actually outpaced any recent president in his nominations to fill federal judicial vacancies early in his first year. 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, “In terms of confirmations, he’s out ahead.”
As of Aug. 17, Biden had put forth 32 judicial nominees, including 23 for district court judgeships; and nine had been confirmed. At the same point, according to Wheeler’s research, Trump had four confirmations. Former President Barack Obama had none; President George W. Bush had three; President Bill Clinton had none; President George H.W. Bush had four; and President Ronald Reagan had two.
In an Aug. 5 news release, the White House touted Biden’s “historic pace with respect to judicial nominations,” and also noted the diversity of his nominees, including several historic firsts, such as the first openly LGBT judge nominated for specific posts.
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 its caseloads have soared. Idaho’s congressional delegation has long pushed for the state to get an additional judgeship, and all four of its members are currently sponsoring legislation to do just that, though it hasn’t advanced. The nonpartisan Judicial Council of the United States has been recommending a third judgeship be added for Idaho since 2003.
Wyoming, with less than a third of Idaho’s population, has three district judges. So does Montana, with less than two-thirds of Idaho's population.
Idaho is also one of just two states that has never had a female U.S. district judge; the other is North Dakota.
Winmill, who has served on Idaho’s federal bench for 26 years, said, “The fact that we’ve never had a female district judge has always been of concern to me. I think that needs to be addressed. We need to be at a point in our society where gender doesn’t matter, where we don’t even think about it.” But he noted that for much of history, women were largely excluded from the legal profession, though they now make up a growing portion of the bar.
“It’s an issue I hope we address either here or in some future appointment,” he said. “I’ve got three daughters. I think a lot about how I’d want them to be treated.”
Rubel joined with Idaho’s other highest ranking Democratic elected officials, based on both level of office and constituents represented — Boise Mayor Lauren McLean, Senate Minority Leader Michelle Stennett, and Ada County Commissioner Kendra Kenyon — to interview candidates for the now-open position.
“These elected officials that were working to put together the slate are also all female,” noted Kathy Griesmyer, director of government affairs for McLean and the city of Boise. “They felt it was really important to meet not only local and state interests in moving forward a female nominee, but also kind of aligning with the Biden Administration’s interest in having a more diverse judicial bench.”
The group of officials conferred with Idaho Women Lawyers, the Idaho Trial Lawyers Association, and several other Idaho attorney groups. Griesmyer said it was the “legal community helping lift up the names of folks who have demonstrated good service and leadership within their communities that they felt would be a good representation of the judiciary here in Idaho.”
The slate that the officials sent the White House, in alphabetical order and not ranked, consisted of Idaho Falls attorney DeAnne Casperson; Boise attorney Keely Duke; Boise attorney Deborah Ferguson; and former U.S. Attorney for Idaho Wendy Olson.
McLean met with Crapo’s staff and shared the list with the senator, Griesmyer said. “So they’ve had some conversations, but we don’t know who is on Crapo’s list,” she said. “Sen. Crapo’s office has been doing sort of their own vetting and discussions. But we’ve shared with the delegation and the White House who those local electeds moved forward.”
Carl Tobias, a law professor with the University of Richmond who tracks federal judicial nominations, said of Idaho’s senators, “Well, they ought to get in line. And they’re not alone. Biden has not nominated anyone for a district seat in any state represented by a Republican senator — yet. But as I understand it from both senators, Idaho’s in dire straits now and needs at least one more Article III judge to handle the caseload, and it’s been an extreme situation for some time.”
“I think there’s a queue already, because blue-state senators haven’t been shy,” Tobias said. “They’ve been putting names to the White House and there are 30-some plus nominees already.” More likely will be confirmed as soon as Congress returns from its August break, he said.
“The people of Idaho are going to be disserved if they can’t get somebody in there,” the professor said. “And when it gets into 2022, nobody’s going to be in any hurry to nominate and confirm people in red states.”
Winmill said when it comes to Idaho’s next U.S. district judge, “I don’t care about politics at all; to me it’s irrelevant. What I care about is somebody that actually knows the courtroom, will embrace the job, has some level of acumen and intelligence and understanding of the law, has confidence in what they’re doing, but also humility, understanding that they don’t have all the answers. I think those are all the things that I would hope and I’m very confident will be in the judge who replaces me.”
He added, “I hope they hurry up the process, whatever it is, but I have zero role in it.”
Idaho state Rep. James Ruchti, D-Pocatello, a former president of the Idaho Trial Lawyers Association, said he provided input to the officials when they interviewed candidates, including helping connect various lawyers groups. “I felt really good about the effort,” he said.
He noted, “We have states surrounding us with smaller populations that have more federal district judges than we do, and it comes with a price.” Idaho litigants sometimes end up with an out-of-state judge hearing their case, he said, and Idaho judges’ workload far exceeds that of judges in other states.
Ruchti, who clerked for Winmill early in his legal career, had high praise for the now-senior judge. “Judge Winmill is one of the hardest-working judges and attorneys that I’ve ever met,” he said. “He was about as well-read a human being as I think there is. … He could draw from so many different areas of the law, and just social sciences and literature. … He’s a phenomenal human being, and you can see he has a sense of duty that’s really important to him.”
Winmill, 69, said, “My going senior will help, because I’ll keep a full caseload. At some point, I’ll probably start to gradually reduce my caseload, but just getting a third judge to take my place will just reduce by workload by a third, just by definition, because we’ll have three judges handling what only two of us were doing before.”
For now, though, nothing’s changed for Winmill. He’s in the midst of a huge jury trial in the Babichenko counterfeit cellphone case that started out with nine defendants; it began in June and has been in court much of the day nearly every day since. “It’s pretty rigorous,” Winmill said.
U.S. district judges are lifetime appointees who are eligible to take senior status at age 65; nominated by the president and confirmed by the U.S. Senate, their role is defined by Article III of the U.S. Constitution. They handle civil and criminal cases in 94 district or trial courts across the nation.
Winmill is a graduate of Idaho State University and Harvard Law School who practiced law in Colorado and Idaho before being appointed a state district judge in Pocatello in 1987. He was appointed to the federal court by President Bill Clinton on Aug. 14, 1995.
Asked about highlights and lowlights of his many years on the bench, Winmill said, “Imposing sentence in a criminal case is always going to be the hardest, absolutely the hardest thing we do … to realize that you’re responsible for someone’s freedom. I was on the state court imposing the death penalty; you’re even responsible for their life. I always thought it’d get easier, and I think if anything it’s gotten harder, because I see things with so much of a broader perspective, and an understanding about human frailty.”
A few defendants, he said, arouse “no sympathy, no concern about what we do, but for the vast majority … you really do begin to understand that but for a few good decisions you made and a few bad decisions they made, our roles could almost be reversed.”
He said that’s been a highlight as well, as with the right sentence, “you actually could have an impact for both that person’s life and also for society.”
Winmill said it’s been the highly complicated trials that he’s found the most fascinating, from death penalty cases in state court to the Pit 9 cleanup case involving the Idaho National Laboratory in eastern Idaho, in which “I had to get deeply involved in all of the science of radioactivity.”
He also pointed to the St. Luke’s-Saint Al’s case “dealing with the Affordable Care Act playing out, but in the context of anti-trust laws.” Another was a four-month trial, known as the Adams case, involving crop losses affecting hundreds of millions of dollars of profit for farmers in eastern Idaho.
During a major securities fraud case involving Meridian property management company DBSI that landed several executives in prison, “In the middle of the trial, the FBI agent who was on the witness stand that night committed suicide, which was certainly an extremely traumatic, difficult thing to deal with,” Winmill said.
He also noted the current Babichenko trial, a multimillion-dollar case involving counterfeit cellphones, as a fascinating one.
“I think those were all really, really interesting and intellectually challenging, just to figure out how to deal with really complex subject matter, and a complicated process for the trial,” Winmill said. “Those were the things I probably find the most interesting and rewarding. But every day it’s something new.”
As a district judge, he noted, he has “to be able to move from one complex area of the law to a different complex area of the law, literally from moment to moment.” That could include going from a major environmental law case, to an anti-trust law case, “to a sentencing in a criminal matter. That’s in one morning. That’s part of the job that I think is challenging and incredibly interesting.”
He said he’s glad to continue working full-time, as he loves what he does. “It’s just been an amazing opportunity to try to serve the people of Idaho and the United States,” he said. “It’s been an incredible blessing and honor. … And I hope it continues, because I have no desire and I have no intent to reduce my caseload at all for a while.”
McLean, in a statement to the Idaho Press, said, “Judge Winmill has worked tirelessly in the interests of justice and demonstrates his commitment to our state and the District of Idaho day in and day out. By taking senior status he'll continue to serve, incredibly important since we only have two judges. I'm grateful to him, as we all are.”
The last time Idaho had a U.S. District Court judge opening, under the blue-slip process, Crapo and Risch were in the driver’s seat. The two senators, both of whom are attorneys, spent 19 months vetting possible nominees after calling for applications. “We considered everyone who applied, and some who didn’t,” Risch said in 2016, “on the basis of what we wanted to see from a philosophical and judicial standpoint.”
The eventual nominee, current U.S. District Judge David Nye, hadn’t applied; he received a call from the two senators in January 2016 about the position.
Risch and Crapo drew flak for their secretive process over the course of the year and a half-plus they considered candidates, including when word leaked out in 2015 that they’d only interviewed four men for the judgeship. The two later said they were interviewing both “men and women.”
President Obama nominated Nye, a former state court judge, for the position in April 2016. Nye won unanimous support from the Senate Judiciary Committee, but his nomination never came up for a vote in the full Senate before Obama left office at the end of the year, as both parties wrangled over the Senate GOP leadership’s refusal to consider Obama’s Supreme Court nominee, Merrick Garland.
Working with Risch and Crapo, President Trump then re-nominated Nye, and he was confirmed by the Senate in July 2017.
In mid-July of this year, Idaho’s federal courts hosted a continuing legal education session with Idaho Women Lawyers, the Federal Bar Association, and several sections of the Idaho State Bar on the process for becoming a federal judge. Crapo sent a statement on the process in which he wrote, “Our office receives inquiries from and about numerous qualified applicants. … After collecting a slate of up to three names, we will submit those choices for the president for him to select his choice. The White House will then make its own determination, based on further background checks and discussions. Idaho’s two senators will work with the White House in an attempt to reach agreement as to who is the preferred nominee.”
Crapo wrote that it was “unclear” whether the blue-slip veto process will be followed in the current Senate.
Rubel, who also is an attorney, said, “Trump blew that up so he could jam through a bunch of Republicans on the 9th Circuit over (Democratic Sens.) Feinstein’s and Boxer’s objections. No one really knows anything. I think there’s a lot of uncertainty on how this thing is going to play out with the current administration, and whether they will require approval of the nominee by our U.S. senators or not, or whether Donald Trump effectively drove a stake through the heart of that tradition.”
Winmill has long advocated for a merit-based selection process. That’s what happened when he was appointed in 1995, and there was a Democratic president but both Idaho senators were Republicans. Then-Sens. Larry Craig and Dirk Kempthorne convened a bipartisan commission to vet 38 candidates and make recommendations. Winmill was the commission’s unanimous choice from three finalists; he was confirmed amid praise from both Craig and Kempthorne.
Wheeler said, “Is the blue slip still in place? Who knows.”
“For one thing, it’s just too early to tell," he said. "We’re at maybe the bottom of the first inning of a nine-inning game.”
Crapo, in his statement to the bar groups, wrote, “We have had several preliminary conversations with the White House, and are hopeful that Idaho’s two United States senators and the White House will be able to find consensus about a preferred candidate for the position.”