If Idaho Sens. Mike Crapo and Jim Risch are intent on nominating Erika Malmen for a vacant U.S. District Court judgeship, they or their surrogates should be providing some cover for the Boise attorney, who appears to be short on judicial experience and long on political pull by way of husband Jeff Malmen.
But that would engender an explanation for the entirety of a long candidate search extraordinary for its secrecy, if not the result.
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Wednesday, spokesmen for both senators declined to discuss whether Malmen might indeed be their nominee, or what other names they may have forwarded to the White House for approval by President Obama. Only reports that the U.S. Department of Justice is checking her background gives any substance to the possibility she is their choice.
And if that process signals she is acceptable to the president despite her client list and political allegiances, that should not be surprising. Judicial nominations have become political tender useful in trading for other priorities, or just making a point.
There are 53 vacant U.S. District Court judgeships, and pending nominees for 23 of them. The Senate confirmed two nominations earlier this month, one for a position that had been open for almost three years, which is by no stretch the longest open seat.
Given the protracted nomination and confirmation process, it is possible that Malmen will not clear all the hurdles before this president, and this Senate, are replaced.
Malmen will not get a smooth ride, nor should she.
The 41-year-old has no judicial experience, and does not deserve any if the assessment of her fellow attorneys carries any weight. She did not make the short list of four finalists for a vacancy on the Idaho Court of Appeals for which 12 attorneys had submitted their names.
The environmental community will be concerned with a client list that’s a who’s who of Idaho’s extractive industries. Jeff Malmen is vice president of the Idaho Power Co., and former chief of staff to two governors, including incumbent Butch Otter.
In a small state like Idaho, those political and professional connections are bound to exist, and should not necessarily be disqualifying.
But a little history: U.S. Sens. Larry Craig and Dirk Kempthorne in 1995 fought off the nomination of John Tait for the District Court judgeship now occupied by B. Lynn Winmill because, they argued, he had little federal court trial experience, or handling criminal cases, and no experience as a judge or prosecutor.
Does that profile remind you of anybody?
Spokesmen for Crapo and Risch let on that Malmen may not be their only choice. Perhaps Malmen knows the answer to that question, but she is certainly in no position to speak to that or her own record until the senators confirm she’s the one.
Now that her name is out there, Malmen at least deserves a statement from them that she has the qualifications for a lifetime of service on a court important to the lives of every Idahoan. The only words of approval on the record are those of former Democratic Rep. Walt Minnick, who says she is “very capable.”