In December 2016, the Republican-controlled U.S. Senate left 59 pending judicial nominations made by President Obama unconfirmed as it adjourned. Among those nominations was that of Judge David Nye, an Idaho state judge named to a federal district court seat. Last week, Nye’s nomination was improbably revived by President Trump, giving him another opportunity for a lifetime appointment.
David Charles Nye was born in 1958 in Lynwood, California. After spending a year at the University of Utah, Nye received his Bachelor’s degree and his J.D. from Brigham Young University in Provo. After graduation, Nye spent two years at the Utah Attorney General’s office, before moving to Idaho to serve as a law clerk for Judge George Granata on Idaho’s Fifth District Court.
In 1987, Nye joined the Pocatello law firm, Merrill & Merrill, as an associate. He was promoted to a partner there two years later. At the firm, Nye maintained a diverse litigation practice, representing both plaintiffs and defendants in civil cases, as well as working on contract disputes, family law, and administrative cases.
In 2007, Nye was appointed by Republican Governor Butch Otter to a judgeship on Idaho’s Sixth District Court. As a District Judge, Nye handled all felony cases and civil cases involving more than $10,000 in damages. Nye was re-elected to this position in 2010 and 2014.
On April 5, 2016, upon the recommendation of Idaho Senators Mike Crapo and Jim Risch, Nye was nominated for a seat on the U.S. District Court for the District of Idaho by President Barack Obama.
History of the Seat
The District of Idaho, which covers the entire state, has only two authorized active judgeships. For 20 years, the same two judges, Edward Lodge, and B. Lynn Winmill, held those judgeships. In 2014, however, Judge Lodge announced his move to senior status, opening up a vacancy for President Obama to fill. In response, Crapo and Risch, both Republicans, both offered to work with the Obama Administration to find a nominee who was acceptable to all parties.
This began a sixteen-month long negotiation between the Senators and the Obama Administration. After receiving criticism for a secretive selection process that ignored qualified female candidates, the Senators suggested Erika Malmen, a little-known environmental attorney whose husband, Jeff, was prominent in the Idaho Republican Party. After Malmen was rejected by the Administration, the Senators turned to Idaho Fifth District Court Judge G. Richard Bevan, a Republican and former prosecutor.
After Bevan was also rejected by the White House, Crapo and Risch reached out to Nye in late January 2016 to gauge his interest for the position. On Feb. 4, the Senators formally recommended Nye to the White House. The White House formally nominated Nye on April 5, 2016.
With both Crapo and Risch’s support, Nye’s nomination received a hearing on June 21, 2016, and was voted out of the Judiciary Committee unanimously on July 15.
However, it proceeded to languish on the floor due to Senate Majority Leader Mitch McConnell’s refusal to confirm any of President Obama’s judicial nominees. Despite the efforts of Crapo and Risch, the nomination expired unconfirmed at the end of the 114th Congress.
Nevertheless, the Idaho Senators immediately indicated that they would re-recommend Nye to the Trump Administration. On May 8, 2017, Trump announced that he would renominate Nye to the District of Idaho.
For approximately twenty years before he became a judge, Nye practiced law in Pocatello, working primarily in litigation. During this time, he tried approximately 90 trial court cases, the vast majority of which were jury trials.
Among Nye’s most notable cases are several where he served as defense counsel in personal injury cases. Early in his career, Nye obtained summary judgment on behalf of a fertilizer plant against two workers who suffered burn injuries while working there. Nye successfully argued that the case was barred by Idaho’s statute of repose. Similarly, Nye successfully defended a dairy farm in an action brought by an injured employee, and a farmer whose cow ran onto a highway and caused a car accident.
Nye also represented plaintiffs and criminal defendants. Nye unsuccessfully represented a defendant challenging the constitutionality of Utah’s law prohibiting the showing of harmful materials to minors. He also represented road workers injured from an accident at a construction site in their unsuccessful appeal to the Idaho Supreme Court.
Jurisprudence and Reversals
In his ten years on the state bench, Nye has presided over more than 1200 cases. Approximately 7% of Nye’s decisions have been reversed by higher courts. Here is a summary of the more prominent reversals.
Reversals in Civil Cases
Bennett v. Patrick – In this case, the Idaho Supreme Court reversed Nye’s refusal to award attorney’s fees to prevailing plaintiffs in a car accident case. Nye had refused to award attorney’s fees to the plaintiffs under Idaho Statute IC § 12-120(4), which eliminated attorney’s fees in cases where the initial demand was greater than $25,000. The Supreme Court found that, while plaintiff’s trial demand was indeed greater than $25,000, their initial offer of settlement was less, and as such, the plaintiffs are not barred from recovering attorney’s fees under IC § 12-120(4).
Cummings v. Stephens – This case involved an appeal from Nye’s judgment for the plaintiffs in a dispute involving the sale of a farm. Nye had found that a title company was negligent in issuing title on the farm and owed $50,000 in damages to the buyer. The Idaho Supreme Court reversed the grant of damages, while affirming the finding of negligence.
Sadid v. Idaho State Univ. – This case involved a professor’s suit against his university for breach of employment contract and violation of First Amendment Rights. The professor argued that his dismissal was based on his public criticism of the university and its administrators. Nye granted summary judgment against the professor, finding that he spoke as a public employee on matters not of public concern, and as such, his dismissal was not a violation of the First Amendment. The Idaho Supreme Court reversed this holding, but affirmed the grant of summary judgment on alternative grounds.
Wanner v. State Dep’t of Transp. – In this case, a motorist challenged the suspension of his personal and commercial driver’s license after he failed a breathalyzer test. Nye struck down the suspension of the commercial driver’s license, holding that the state had failed to provide adequate notice. On appeal, the Idaho Supreme Court agreed that the notice was inadequate but reversed the ruling, noting that the motorist had failed to exhaust his administrative remedies.
Reversals in Criminal Cases
Cook v. State – In this case, Nye granted a Rule 60(b) motion to reduce the sentence of a defendant whose previous sentence had been struck down by the Idaho Court of Appeals. The Idaho Court of Appeals reversed this reduction of sentence, arguing that Nye had failed to require the defendant to show incompetent performance by his sentencing counsel.
State v. Erickson – This case involved a defendant’s challenge to his conviction, arguing that the prosecution had engaged in misconduct during his trial, including shifting the burden of proof to the defense. While Nye denied the challenge, the Idaho Court of Appeals reversed, holding that the prosecutorial misconduct in the case was a fundamental error.
The willingness of both President Obama and President Trump to nominate Nye speaks to his uncontroversial background. A review of his record as an attorney and a judge does not suggest a bias towards prosecutors, plaintiffs, or defendants. When Nye’s nomination by President Obama failed, Crapo and Risch could have chosen a more conservative candidate. The fact that they did not speaks to the support and respect that Nye commands.
For over 20 years, Judge Lodge and Judge Winmill have managed Idaho’s busy trial docket among themselves. The likely confirmation of Judge Nye will give them both a well-deserved break.
 Idaho District Court judges serve four year terms, and can be re-elected in nonpartisan elections.
 Betsy Z. Russell, Judge Lodge to Take Senior Status, Idaho to Get New Federal Judge, The Spokesman-Review, Sept. 24, 2014, http://www.spokesman.com/stories/2014/sep/24/judge-lodge-take-senior-status-idaho-get-new-feder/.
 David Cole, In Search of the Best Person for the State, Couer D’Alene/Post Falls Press, Sept. 26, 2014, http://www.cdapress.com/archive/article-e388fae9-46fc-5371-bc45-4058f2be739b.html (quoting Sen. Risch) (“There will be people who won’t be acceptable to Sen. Crapo or I, and there will be people who won’t be acceptable to the President, but at the end of the day, we’ll come up with somebody and fill the spot.”).
 Betsy Z. Russell, Women Shut Out of Idaho Judge Selection, The Spokesman-Review, Apr. 25, 2015, http://www.spokesman.com/stories/2015/apr/28/women-shut-out-of-idaho-judge-selection/.
 Betsy Z. Russell, The Boise Attorney Who Could Be Idaho’s Next Federal Judge: Erika Malmen, The Spokesman-Review, Oct. 21, 2015, http://www.spokesman.com/blogs/boise/2015/oct/21/boise-attorney-who-could-be-idahos-next-federal-judge-erika-malmen/.
 Betsy Z. Russell, Twin Falls Judge Now Being Considered for Federal Judgeship, Idaho Statesman, Dec. 9, 2015, http://www.idahostatesman.com/news/politics-government/state-politics/article48808210.html.
 Unlike Malmen and Bevan, Nye is not registered with the Idaho Republican Party.
 Nathan Brown, Nye on Track for Confirmation as Idaho Federal Judge, MagicValley.com, Jun. 22, 2016, http://magicvalley.com/news/local/govt-and-politics/nye-on-track-for-confirmation-as-idaho-federal-judge/article_cbc12dbf-4f81-59d5-a2b7-e0a5d40bc878.html.
 Nathan Brown, Senate Panel Clears Nye for Idaho Judge Spot, MagicValley.com, Jul. 15, 2016, http://magicvalley.com/news/local/govt-and-politics/senate-panel-clears-nye-for-idaho-judge-spot/article_af500b46-99fc-5b30-af01-36d14cc2c784.html.
 Betsy Z. Russell, White House Agrees to Renominate Judge Nye for Long-Vacant Federal Judgeship, The Spokesman-Review, Apr. 27, 2017, http://www.spokesman.com/blogs/boise/2017/apr/27/white-house-agrees-re-nominate-judge-nye-long-vacant-idaho-federal-judgeship/.
 West v. El Paso Products Co., 832 P.2d 306 (Idaho 1992).
 Loza v. Arroyo Dairy, 53 P.3d 347 (Idaho Ct. App. 2002).
 Karlson v. Harris et al., 97 P.3d 428 (Idaho 2004).
 State v. Brown, 856 P.2d 358 (Utah App. 1993).
 Fuhriman v. State Dep’t of Transp., 153 P.3d 480 (Idaho 2007).
 Bennett v. Patrick, 276 P.3d 1231 (Idaho 2011).
 Cummings v. Stephens, Bear Cnty. Case No. CV-2009-183.
 See id.
 Cummings v. Stephens, 336 P.3d 281 (Idaho 2014).
 Sadid v. Id. State Univ., Bannock Cnty. Case No. CV-2008-3942.
Sadid v. Id. State Univ.,265 P.3d 1144 (Idaho 2011).
 Wanner v. State Dep’t of Transp., Franklin Cnty. Case No. CV-2008-364.
 Wanner v. State Dep’t of Transp., 244 P.3d 1250 (Idaho 2011).
 Cook v. State, Lake Cnty. Case No. CV-2004-267.
 State v. Cook, 2010 WL 9589151 (Idaho Ct. App., Aug. 27, 2010).
 State v. Erickson, 227 P.3d 933 (Idaho Ct. App. 2010).
 United States v. Badger, 581 F. App’x 541 (6th Cir. 2014).