Trevor McFadden – Nominee for the U.S. District Court for the District of Columbia

A longtime member of the Federalist Society, Trevor McFadden, in many ways, represents their ideal for a judicial candidate.  He is strongly conservative, young, and has excellent academic credentials.  Each of these points, conversely, is likely to draw Democratic opposition.

Background

Trevor Neil McFadden was born in Alexandria, VA in 1978.  After getting his B.A. from Wheaton College in Illinois, McFadden spent two years as an officer with the Fairfax County Police Department.  In 2006, McFadden graduated from the University of Virginia School of Law with the Order of the Coif, indicating superior academic performance.  McFadden then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.[1] 

After his clerkship, McFadden joined the Department of Justice, serving as Counsel for the Deputy Attorney General.  After the inauguration of the Obama Administration, McFadden joined the U.S. Attorney’s Office for the District of Columbia, serving as a prosecutor for four years.  During this time, he also served as a Part-time Deputy Sheriff for the Madison County Sheriff’s Office.

In 2013, McFadden left the U.S. Attorney’s Office to join the D.C. Office of Baker & McKenzie, LLP.  After the election of President Trump, McFadden rejoined the Department of Justice, this time as second in command at the Criminal Division.

McFadden has been a member of the Federalist Society since 2003.

History of the Seat

The seat McFadden has been nominated for opened on December 31, 2016, with Judge Richard Leon’s move to senior status.  On On March 2, 2017, McFadden was informed of the White House’s interest in naming him to the vacancy.  McFadden was formally nominated by President Trump on June 7.

Legal Experience

McFadden may be a couple of years shy of forty, but he has managed to accumulate an impressive breadth of legal work in that time.  While McFadden has taken on prominent policy roles in the Department of Justice, and has advised numerous corporations on compliance with federal law at Baker McKenzie, the bulk of his courtroom experience is from his stint as a federal prosecutor.

As an AUSA, McFadden worked primarily on prosecuting violent crimes.  For example, McFadden successfully prosecuted a man who assaulted and robbed a 78 year old dialysis patient, .[2]  McFadden also successfully defended the conviction of a defendant convicted of conspiring to distribute over a kilogram of PCP.[3]

Nevertheless, McFadden’s stint at the Criminal Division of the Department of Justice may draw more scrutiny.  In this role, McFadden serves as second in command to Acting Assistant Attorney General Kenneth Blanco.  McFadden may draw questions related to the recent charging memo released by Attorney General Jeff Sessions, calling on federal prosecutors to charge defendants with the strongest possible charges regardless of other factors.[4]  McFadden may also face questions as to his involvement with the Department’s efforts to crack down on sanctuary cities.

Political Activity

McFadden has been fairly active in the Republican party, having canvassed for GOP candidates since his high school days.  In his SJQ, McFadden notes that he has canvassed for President George W. Bush’s 2000 and 2004 campaigns, Mitt Romney’s 2012 campaign, and Rep. Tom Davis’ 1996 election campaign among others.

McFadden is also a supporter of President Trump, having donated $1000 to his election efforts, and being a vetter for his transition team.

Overall Assessment

As noted above, the young, conservative, and ambitious McFadden is likely to be a template for Trump nominees to the federal bench.  As such, Democrats are likely to look for reasons not to support his nomination.

Most of the objections that can be drawn to McFadden are based on process.  Unlike previous administrations, the Trump Administration declined to consult with D.C. Delegate Eleanor Holmes Norton in making federal court nominations.  McFadden has already drawn criticism from Norton for not being a D.C. resident.[5]  Furthermore, McFadden’s hearing, scheduled for the 28th of June, is moving forward without an ABA rating on his nomination.  Furthermore, McFadden’s 14-year long history with the Federalist Society is unlikely to be missed as well.  As such, expect a more difficult confirmation process for McFadden than his fellow D.C. nominees Friedrich and Kelly.


[1] Colloton himself is a former prosecutor and a shortlist candidate for a Supreme Court vacancy.

[2] See United States v. Brown, 2011-CF3-0160000 (D.C. Super. Ct.) (Judge Pan).

[3] United States v. Bell, 708 F.3d 223 (D.C. Cir. 2013).  

[4] See Matt Ford, Jeff Sessions Reinvogarates the Drug War, The Atlantic, May 12, 2017, https://www.theatlantic.com/politics/archive/2017/05/sessions-sentencing-memo/526029/.

[5] Press Release, Office of the MP Eleanor Holmes Norton, Norton Urges Senate Democrats to Question D.C. Federal Nominees on Residency, Familiarity with D.C., After White House Nominates Non-D.C. Residents for the U.S. District Court and U.S. Attorney for the District of Columbia (June 13, 2017).

Timothy Kelly – Nominee to the U.S. District Court for the District of Columbia

Typically, when choosing federal district court judges, presidents defer to home state senators.  While most senators make their selections from the pool of politically active litigators, federal prosecutors, state court judges, and federal magistrates, some turn to a different pool: their employees.  Over the past few decades, several staffers on the Senate Judiciary Committee have been nominated and confirmed for the federal bench.  Most notably, Justice Stephen Breyer was a staffer for then-Judiciary Chairman Edward Kennedy (D-MA) before he was tapped for the federal bench.  Similarly, Sen. Strom Thurmond (R-SC) tapped multiple veterans of his staff for judgeships including Judge Dennis Shedd of the U.S. Court of Appeals for the Fourth Circuit, and Judges Henry Herlong and Terry Wooten of the U.S. District Court for the District of South Carolina.  Timothy Kelly, a prominent staffer to current Judiciary Chairman Chuck Grassley (R-IA), follows that long tradition.    

Background

Timothy James Kelly was born in Glen Cove, NY in 1969.  After getting an A.B. from Duke University in 1991, Kelly joined the New York office of Cleary, Gottlieb, Steen & Hamilton as a legal assistant, working there for two years.  In 1993, Kelly left his position as Cleary to work as a staff assistant for the U.S. House Committee on House Administration.  During this position, Kelly also worked as a waiter and doorman at the popular Capitol Hill bar, Hawk ‘N’ Dove.  

In 1994, Kelly left both positions to join the George University Law Center, getting his J.D. in 1997.  Kelly then joined the D.C. office of Arnold & Porter, where he had previously worked as a law clerk.  He worked at Arnold & Porter until 2003, other than a one-year stint as a loaned associate to the Legal Aid Society for the District of Columbia and another year clerking for Judge Ronald Buckwalter on the U.S. District Court for the Eastern District of Pennsylvania.

In 2003, Kelly was hired by Roscoe C. Howard to join the U.S. Attorney’s Office for the District of Columbia, eventually moving up to the Major Crimes section of the Criminal Division.  In 2007, Kelly moved to the Department of Justice’s Criminal Division, fighting corruption in the Public Integrity section.

In 2013, Kelly was hired by Sen. Grassley to serve as Counsel and as the Republican Staff Director to the Senate Caucus on International Narcotics Control.  Kelly currently serves as Grassley’s Chief Counsel for National Security and Senior Crime Counsel.

History of the Seat

The seat Kelly has been nominated for opened on May 18, 2016, with Judge Rosemary Collyer’s move to senior status.  On September 6, 2016, President Obama nominated Abid Riaz Qureshi, a litigation partner at Latham & Watkins to fill the vacancy.[1]  Qureshi, who would have been the first Muslim to serve as a federal judge,[2] never received a hearing on his nomination.

Legal Experience

Kelly’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1997-2003, where he worked as an associate at Arnold & Porter.  The second is from 2003-2013, where Kelly worked as a federal prosecutor and DOJ attorney.  The final is from 2013-2017, where Kelly served in the legislative branch.  We will focus on the first two periods.

Kelly’s time at Arnold & Porter was focused on defending pharmaceutical companies against product liability lawsuits.  Kelly served on the legal team defending American Home Products Corp. (Wyeth) in tort lawsuits relating to their sale of diet drugs.  The team ultimately reached a national settlement over the claims during simultaneous state court trials in Mississippi and New Jersey.[3]

As an AUSA, Kelly worked on several trial and appellate level prosecutorial matters, including misdemeanors, violent crimes, and white collar offenses.  For example, Kelly successfully prosecuted a defendant for threatening his former girlfriend with a gun and assaulting her.[4]  Kelly also argued three criminal appeals at the D.C. Court of Appeals.

At the Public Integrity Section, Kelly focused on the investigation and prosecution of political corruption.  Kelly prosecuted Eugenio Pedraza, Special Agent-in-Charge for the Department of Homeland Security, who conspired with fellow agents to falsify investigative reports.[5]  Kelly also successfully prosecuted Donna Scott for steering Department of Energy contracts to her husband.[6]  Notably, Kelly successfully prosecuted the Lt. Governor of the American Samoa, and a senator in the American Samoa legislature for public corruption.[7]

In 2010, Kelly was part of the legal team prosecuting former CIA agent Jeffrey Sterling for his unauthorized disclosure of classified information to journalist James Risen.  Before Sterling’s trial, the prosecution missed a discovery deadline imposed by Judge Leonie Brinkema, submitting key impeachment evidence one day late.  Judge Brinkema sanctioned Kelly and the other government attorneys for the missed deadline by striking two government witnesses.  The Fourth Circuit, in a 2-1 decision, overturned this sanction as an abuse of discretion, noting that the government conduct was not made in bad faith.[8]  Nevertheless, the majority opinion noted that it cannot “condone the Government’s oversight.”[9] 

Political Activity

Kelly, a Republican, has a relatively short record of political activity.  In 2008, Kelly made multiple contributions totalling $1200 to Sen. John McCain (R-AZ) (who was then running for president).[10]  In 2012, Kelly contributed $1250 to Mitt Romney’s presidential candidacy.  Further, in 2014, Kelly traveled to Iowa to canvass and make phone calls for the successful candidacy of Sen. Joni Ernst (R-IA).

Overall Assessment

Kelly has an unusually well-rounded resume for a federal district court position.  Having worked in private practice, as a federal prosecutor, and in the legislative process, Kelly will approach the bench with a broad array of legal experience.  Furthermore, Kelly also has experience working with indigent clients, as he spent a year representing low income residents of Washington D.C. in cases involving public benefits, landlord-tenant, and family law.  

It must also be noted that Kelly’s pre-law school experience is relatively rare for a federal judicial nominee.  Of the nominees we have reviewed, Kelly is the first to have worked two jobs simultaneously, the first to have worked in the service industry, and the first to report having received federal financial aid.[11]  Given the privileged pedigrees of many nominees, Kelly’s background is refreshingly different.

Given these factors, and the lack of any controversial stances in his background (although like most other Trump nominees, Kelly is a longtime member of the Federalist Society), Kelly should face a relatively smooth path to confirmation.  If nothing else, Kelly’s time as a committee staffer should help grease the path.  After all, who knows Kelly better than those who work with him every day.


[1] Press Release, White House, President Obama Nominates Abid Riaz Quereshi to Serve on the United States District Court for the District of Columbia (Sept. 06, 2016) (on file at https://obamawhitehouse.archives.gov).  

[2] Jennifer Bendery, Barack Obama Just Nominated a Muslim to be a Federal Judge.  That’s A First, HuffPost, Sept. 6, 2016, http://www.huffingtonpost.com/entry/obama-muslim-federal-judge_us_57cf2cfbe4b03d2d45970d3a.

[3] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[4] See United States v. Williams, 2006 CF3 025277 (D.C. Super. Ct.) (Judge Dixon).

[5] United States v. Pedraza, No. 1:13-cr-00305 (S.D. Tex.) (Judge Hanen), aff’d, 636 Fed. Appx. 229 (5th Cir. 2016).

[6] United States v. Donna Scott, No. 1:10-cr-00025 (D. Md.) (Judge Messitte).

[7] United States v. Sunia and Lam Yuen, 643 F. Supp. 2d 51 (D.D.C. 2009).

[8] United States v. Sterling, 724 F.3d 482, 512-13 (4th Cir. 2013).

[9] Id. at 512.

[10] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=timothy+kelly (last visited June 27, 2017).  

[11] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.

Dabney Friedrich – Nominee to the U.S. District Court for the District of Columbia

Dabney Friedrich’s nomination to the U.S. District Court for the District of Columbia was announced by President Trump on May 8, 2017, but was not formally nominated to the Senate until June 7.  While the cause of the delay is unknown, it is unlikely to hinder the well-qualified Friedrich’s path to the bench.

Background

Dabney Langhorne Friedrich was born June 19, 1967.  After receiving her Bachelor of Arts from Trinity University and diploma in legal studies from Oxford University she received her law degree from Yale Law School where she served as the senior editor on the Yale Journal on Regulation.  

Friedrich clerked for Judge Thomas F. Hogan of the United States District Court for the District of Columbia.  She prosecuted criminal cases as an Assistant United States Attorney for the Southern District of California and Eastern District of Virginia, and then served as Chief Crime Counsel to chairman Orrin Hatch of the Senate Judiciary Committee, and Associate White House Counsel to the President during the George W. Bush Administration, where she assisted with the nomination and confirmation of federal judges.

In 2006, George W. Bush appointed Friedrich a Commissioner on the United States Sentencing Commission, the independent agency that issues sentencing guidelines and recommendations for federal judges and congressional review. She was re-nominated to the same position by Barack Obama, and has served on the Sentencing Commission through the recent expiration of her term at the end of 2016.  

History of the Seat

Friedrich was nominated to the vacancy left by Reggie Walton, who assumed senior status on December 31, 2015.  Judge Walton, a George W. Bush appointee was similarly a former prosecutor and was appointed to the National Prison Rape Elimination Commission, where he made recommendations to the President, Congress, and Attorney General regarding methods to curb incidents of rape among the incarcerated.  Judge Walton also served a seven-year term on the Foreign Intelligence Surveillance Court, being elevated to its presiding judge in 2013.  

On April 28, 2016, a few months after the seat opened up, President Obama nominated Judge Florence Pan, a judge on the Superior Court of the District of Columbia to fill the vacancy.  Judge Pan received a hearing before the Republican-controlled Senate Judiciary Committee on July 13, and was unanimously approved on September 15.  However, at that point, Pan ran into Senate Majority Leader Mitch McConnell’s blockade on judicial confirmations, and was ultimately returned unconfirmed.

Legal Background  

While Friedrich has extensive experience with criminal law both as a federal prosecutor, and as chief counsel to Sen. Hatch, it is her work on criminal sentencing that is likely to draw the most interest.  

During her time on the Sentencing Commission, Friedrich has worked to eliminate race-based disparities and establish sentencing uniformity.  In 2011, Friedrich joined the Sentencing Commission’s unanimous decision recommending that prisoners incarcerated for offenses involving crack cocaine be eligible for early release.  Friedrich also voted in favor of giving retroactive effect to the Fair Sentencing Act of 2010, which drastically reduced recommended sentences for crack cocaine crimes, to fix the longstanding disparity in sentencing crack vs. powder cocaine crimes.  This allowed offenders who were imprisoned for crack offenses before the new law took effect to benefit as well.  In media comments about the changes, Friedrich noted that political support for sentencing reform will be accomplished by pressure in Congress to control the costs of the U.S. prison system.[1]  Friedrich has also stressed the importance for national uniformity of sentencing, and the efforts of the Department of Justice to provide consistent supervisory guidance to prosecutors across the country.[2]

Over the past six years, under Friedrich’s tenure, the Commission has taken a number of actions to address sentencing disparities and reduce the federal prison population.  In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge.[3] Some of the most recent work of the Commission has included a unanimous vote to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score, following a May 2016 report by the Commission’s Tribal Issues Advisory Group.[4]  Friedrich’s work on these matters suggests a pragmatic approach to criminal sentencing, which tempers retributive justice with other sentencing goals.

Overall Assessment

With a long and distinguished career in public service, Friedrich has had the opportunity to work on numerous issues that directly affect District Court judges, and her background on the sentencing commission shows that she supports reasonable reforms to sentencing laws aimed at reducing the overpopulation of prisons for drug-related offenses.  

Friedrich’s re-nomination to the Commission by the Obama administration also shows her bi-partisan appeal.  If confirmed – and little suggests that she would be a controversial appointment – she will likely use the same consistent, evidence-based approach to the law that has characterized her work at the Sentencing Commission.  


[2] http://www.reuters.com/article/us-usa-courts-sentences-idUSBREA2C08J20140313

[4] Id.

Scott L. Palk – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Like Judge David Nye, Scott L. Palk has been waiting a long time for a federal judicial appointment: over two years to be exact.  Luckily, it looks like 2017 may be the year that Palk finally gets to don the black robes.

Background

An Oklahoma native, Scott Lawrence Palk was born in Tulsa in 1967.  After getting a B.S. from Oklahoma State University and a J.D. from the University of Oklahoma School of Law, Palk joined the District Attorney’s office in Cleveland County.  In 2002, Palk moved to the U.S. Attorney’s Office for the Western District of Oklahoma, serving as an Assistant U.S. Attorney in the Criminal Division.  In 2004, Palk rose to be Deputy Chief of the Criminal Division.

In 2011, Palk left the U.S. Attorney’s Office to rejoin his alma mater, the University of Oklahoma School of Law, as an Assistant Dean of Students and Assistant General Counsel.

On May 18, 2015, Palk was contacted by the office of Sen. James Lankford (R-OK), asking about his interest in an appointment to the Western District of Oklahoma.  After meetings with the Oklahoma Senators, and the Obama Administration, Palk was formally nominated on December 16, 2015.[1]  Palk, and fellow nominee Judge Suzanne Mitchell, received Committee hearings on April 21, 2016,[2] and were approved out of committee unanimously.[3]  However, they ran into a roadblock on judicial confirmations set up by Senate Majority Leader Mitch McConnell (R-KY).  As such, Palk’s nomination was never confirmed and returned to the White House at the end of the 114th Congress.

However, both Lankford and Sen. James Inhofe (R-OK) indicated their continued support for Palk’s nomination.  By their recommendation, Palk was renominated by the Trump Administration on May 8, 2017.[4]

History of the Seat

The seat Palk has been nominated for opened on December 1, 2014, with Judge Stephen P. Friot’s move to senior status.  Despite three of the seven judgeships on the Western District of Oklahoma being vacant, no judges were confirmed to this court during the Obama Administration.  Instead, the Administration’s nominees, Palk and Mitchell, were left unconfirmed despite unanimous committee approval and the support of Oklahoma’s Republican Senators.

Legal Experience

Palk has spent most of his career as a state and federal prosecutor (ten years as the former, nine as the latter).  As an assistant D.A. in Norman, Palk prosecuted violent crimes, drug crimes, sex crimes, and crimes against children.  Among his more notable cases, Palk successfully prosecuted Larry Gene Goble of Noble for the shooting deaths of two people.[5]

In one of his most significant cases, Palk prosecuted Frank Duane Welch for the 1987 murder of Jo Talley Cooper.[6]  In his defense, Welch argued that Cooper died while the two were engaged in auto-erotic asphyxiation.[7]  To combat Welch’s defense, Palk and the prosecution team admitted evidence of another murder Welch had committed, that of Debra Stevens.[8]  After Welch was convicted and sentenced to death, he challenged his trial on several bases, including the admission of the Stevens murder.[9]  The Oklahoma Court of Criminal Appeals affirmed the sentence and the conviction, but criticized Palk and the other prosecutors for failing to delineate the Burks exception that would admit the Stevens conviction when filing their notice with the court.[10]  After the Supreme Court denied review of his case,[11] Welch was executed in 2007.[12]

As an AUSA, Palk successfully prosecuted Sean Michael Gillespie, a white supremacist who was convicted of throwing a Molotov cocktail into a Jewish temple.[13]  Palk was also part of the appellate team that successfully defended Gillespie’s conviction.

As a Dean at the University of Oklahoma Law School, Palk handles civil and administrative matters for the school, including the recruitment of students, supervision of staff, and the mediation of employment issues.

Political Activity

Palk is a registered Republican, but his only political contribution of record is a $250 contribution to Tully McCoy, a Democratic Congressional candidate in 1994.[14]  However, at the time of his candidacy, McCoy was the District Attorney for Cleveland County (and Palk’s boss).  As such, Palk’s contribution can merely be viewed as support for his boss, rather than an endorsement of the Democratic party.

Overall Assessment

As his nominations by President Obama and President Trump would suggest, Palk is not a controversial candidate.  There is little in his record that will incite opposition on either the left or the right.  While Palk’s criminal experience is one-sided (he has spent most of his legal career as a prosecutor), this is hardly disqualifying.  Approximately one year ago, the Judiciary Committee approved Palk’s nomination unanimously.  It will likely do so again.  However, this time, Palk will likely get a floor vote as well.


[1] Press Release, White House, President Obama Nominates Four to Serve on the United States District Courts (Dec. 16, 2015) (on file at https://obamawhitehouse.archives.gov).  

[2] Chris Casteel, Federal Judicial Nominees Sail Through Committee Hearing, The Oklahoman, Apr. 21, 2016, http://newsok.com/article/5493224.

[3] Chris Casteel, Committee Clears Two for Oklahoma City Court, The Oklahoman, May 19, 2016,http://newsok.com/article/5499079.  

[4] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[5] Oklahoma v. Goble, No. CF-1995-1495-L (Okla. Cleveland Cnty. Ct. Sept. 18, 1996).  See also Oklahoman, Jury Gives Life Sentence in Double-Murder Case, The Oklahoman, Sept. 18, 1996, http://newsok.com/article/2551273.

[6] Oklahoma v. Welch, No. CF-1997-247-H (Okla. Cleveland Cnty. Ct. March 30, 1998).

[7] Welch v. State, 2 P.3d 356 (Okla. Crim. App. April 10, 2000) at ❡5.

[8] Id. at ❡7.

[9] Id.

[10] Id. at ❡9 (“However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered.”).

[11] Welch v. State, 531 U.S. 1056 (2000).

[12] Ben Fenwick, State Executes Man for 1987 Murder, Oklahoma Gazette, Aug. 22, 2007, http://okgazette.com/2007/08/22/state-executes-man-for-1987-murder/.

[13] United States v. Gillespie, No. CR-04-94-C (W.D. Okla. Sept. 9, 2005), aff’d, 452 F.3d 1183 (10th Cir. 2006), cert. denied, 549 U.S. 1063 (2006). 

[14] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=scott+palk (last visited May 25, 2017).  

Judge David Nye – Nominee to the U.S. District Court for the District of Idaho

The Idaho Federal Courthouse in Pocatello, where Nye will likely sit.

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.

Background

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.[1] 

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.[2]  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.[3] 

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,[4] the Senators suggested Erika Malmen, a little-known environmental attorney whose husband, Jeff, was prominent in the Idaho Republican Party.[5]  After Malmen was rejected by the Administration, the Senators turned to Idaho Fifth District Court Judge G. Richard Bevan, a Republican and former prosecutor.[6]

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.[7]  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,[8] and was voted out of the Judiciary Committee unanimously on July 15.[9]
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.[10]  On May 8, 2017, Trump announced that he would renominate Nye to the District of Idaho.[11]

Legal Experience

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.[12]  Similarly, Nye successfully defended a dairy farm in an action brought by an injured employee,[13] and a farmer whose cow ran onto a highway and caused a car accident.[14]

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.[15]  He also represented road workers injured from an accident at a construction site in their unsuccessful appeal to the Idaho Supreme Court.[16]

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.[17]  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.[18]  Nye had found that a title company was negligent in issuing title on the farm and owed $50,000 in damages to the buyer.[19]  The Idaho Supreme Court reversed the grant of damages, while affirming the finding of negligence.[20]

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.[21]  The professor argued that his dismissal was based on his public criticism of the university and its administrators.[22]  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.[23]  The Idaho Supreme Court reversed this holding, but affirmed the grant of summary judgment on alternative grounds.[24]

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.[25]  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.[26]

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.[27]  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.[28]

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.[29]  While Nye denied the challenge, the Idaho Court of Appeals reversed, holding that the prosecutorial misconduct in the case was a fundamental error.[30]

Overall Assessment

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.


[1] Idaho District Court judges serve four year terms, and can be re-elected in nonpartisan elections.

[2] 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/.

[3] 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.”).

[4] 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/.  

[5] 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/.

[6] 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.  

[7] Unlike Malmen and Bevan, Nye is not registered with the Idaho Republican Party.

[8] 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.

[10] 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/.

[11] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[12] West v. El Paso Products Co., 832 P.2d 306 (Idaho 1992).

[13] Loza v. Arroyo Dairy, 53 P.3d 347 (Idaho Ct. App. 2002).

[14] Karlson v. Harris et al., 97 P.3d 428 (Idaho 2004).  

[15]  State v. Brown, 856 P.2d 358 (Utah App. 1993).

[16]  Fuhriman v. State Dep’t of Transp., 153 P.3d 480 (Idaho 2007).

[17] Bennett v. Patrick, 276 P.3d 1231 (Idaho 2011).

[18] Cummings v. Stephens, Bear Cnty. Case No. CV-2009-183.

[19] See id.

[20] Cummings v. Stephens, 336 P.3d 281 (Idaho 2014).

[21] Sadid v. Id. State Univ., Bannock Cnty. Case No. CV-2008-3942.

[22] Id.

[23] Id.

[24]Sadid v. Id. State Univ.,265 P.3d 1144 (Idaho 2011).

[25] Wanner v. State Dep’t of Transp., Franklin Cnty. Case No. CV-2008-364.

[26] Wanner v. State Dep’t of Transp., 244 P.3d 1250 (Idaho 2011).

[27] Cook v. State, Lake Cnty. Case No. CV-2004-267.

[28] State v. Cook, 2010 WL 9589151 (Idaho Ct. App., Aug. 27, 2010).

[29] State v. Erickson, 227 P.3d 933 (Idaho Ct. App. 2010).

[30] United States v. Badger, 581 F. App’x 541 (6th Cir. 2014).