Tracking the latest developments in the fight for a fair America
We already know that Texas is the epicenter of a growing judicial vacancy crisis. The state has nine judicial vacancies (the most of any state in the country), seven of which are official judicial emergencies. We also know that vacancies mean long delays for the people and businesses who need the courts to protect their rights and resolve disputes—delays that often mean justice is denied entirely. Now a new study sheds light on another real-world impact of judicial vacancies—the economic harms they cause not just for individual litigants, but for entire communities.
The new study from The Perryman Group, an economic and financial analysis firm, focuses on the Eastern District of Texas, a court with two vacancies and the second highest caseload in the country. According to the non-partisan Judicial Conference of the United States, even if every vacancy were filled, the court still would need two additional judgeships to keep pace with rising caseloads that have more than doubled since 2009.
Noting that “an efficient and predictable judicial system is essential for economic growth and development,” the study projects economic growth in the Eastern District—which includes 43 East Texas counties—under three scenarios: (1) the court’s two vacancies remain empty; (2) the vacancies are filled but no new judgeships are added; and (3) the vacancies are filled and two new judgeships are added.
The results are staggering. According to the report, compared to the current baseline, filling the two current vacancies would create 78,188 jobs and an $11.7 billion increase in “real gross product”—the output of goods and services in the region—by 2030. If the vacancies are filled and two judgeships are added, 148,398 jobs would be created and real gross product would shoot up by $22.1 billion. The study also looked at personal income, worker earnings, and retail sales, and found that fully-staffed courts would lead to dramatic gains in each category. In sum, the report concludes, “investing in the judicial infrastructure can improve quality of life as well as future prosperity. By reducing uncertainties and time required to resolve business disputes, performance of the economy can be enhanced.” Just as a lack of quality roads and utilities slows down commerce and keeps businesses from growing, the report finds that a lack of judges to handle legal disputes holds back economic growth and the creation of new jobs.
The report lays out some big numbers, but the fundamental point—that a reliable and efficient judiciary is necessary for sustained economic prosperity—shouldn’t be surprising. Indeed we’ve heard this before in Texas’s Eastern District. When Judge Leonard Davis announced his retirement in 2014, the Tyler, Texas Area Chamber of Commerce and Tyler Economic Development Council wrote a joint letter to Senators Cornyn and Cruz urging “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler” and avoid the “negative economic implications” of a vacancy. Unfortunately, Cornyn and Cruz didn’t listen, and they still haven’t recommended a replacement for Judge Davis.
Now there’s empirical data to back up what the business community has said all along. The only question is whether it’s enough for Cornyn and Cruz to do something about it.
The Washington Examiner writes this morning that President Obama may “surpass President George W. Bush’s score when it comes to judicial appointments,” and notes that Obama “seems likely to break Bush’s mark with help from a Republican-controlled Senate.” The sole basis of these claims is that Obama is 11 judicial appointments short of matching Bush’s total for his entire eight years. Setting aside that this historically awful Republican majority is barely on pace to confirm 11 more judges this entire Congress, the article demonstrates the absurdity and uselessness of fixating on confirmation totals in isolation.
As an initial matter, judicial selection isn’t a political game of comparing total confirmations. The real measure is not the number of judges confirmed but whether the number of vacancies is falling and the judiciary is fully staffed. So long as vacancies are growing, justice in America is being needlessly denied, and confirmations that can’t keep pace are just a drop in the bucket. As it happens, Obama has had over 40 more vacancies than did Bush at this same point in his presidency, providing a far better explanation for higher confirmations than the notion of preferential treatment for Obama nominees. With vacancies factored in, Obama is actually behind the rate at which Bush appointed judges.
Which brings us to the comedic relief in the Examiner article. It quotes Thomas Fitton, president of the conservative watchdog organization Judicial Watch, arguing that “it’s fair to say that Republicans have bent over backwards . . . to allow many bad and dubious nominees through.” That claim is so divorced from reality you wonder if Fitton has been watching the same Senate as everyone else. First, let’s back up to the fall of 2013, when a Republican minority filibustered three noncontroversial nominees to the D.C. Circuit, forcing Democrats to change the filibuster rule, restore regular order, and allow confirmations via simple majority. Republicans had no issue with the nominees individually—they were intent on blocking Obama from appointing anyone to the Court. For Republicans, the test hasn’t been whether nominees are “bad” or “dubious,” but whether they are Obama nominees.
This unprecedented obstruction has only escalated since Republicans took the majority in January. This Senate has confirmed only six judges so far in 2015, the worst single-year pace since 1953. As a result, the number of current vacancies has gone up over 50 percent and the number of judicial emergencies has gone up over 150 percent. Far from “bending over backwards” to confirm judges, Senate Republicans are engaged in a deliberate strategy of delay and obstruct, sacrificing our justice system to limit Obama’s impact on the courts and preserve vacancies for a future Republican president.
The Examiner’s focus on confirmation totals gets things wrong in two ways. It obscures the central importance vacancies and relieves the Senate of its duty to confirm judges based on incomplete information. It also gives the least productive Senate majority in the modern era credit for the “help” it gives to Obama’s nominees. The Examiner should know better. Thankfully the American people already do.
The Senate returns to work today with a long to-do list after its summer recess. Included on that list are processing judicial nominees, 20 of whom are pending in the Judiciary Committee.
Since January, the number of current judicial vacancies has gone up over 50 percent. Quickly confirming the 20 nominees in committee and 9 pending on the Senate floor would be a first step to stemming the vacancy crisis. Unfortunately, Senate Republicans have immediately returned to their politically-motivated strategy of delaying all of President Obama’s judicial nominees.
Today, Judiciary Committee Chairman Chuck Grassley postponed the scheduled committee vote of three nominees for the second time. John Vazquez, Wilhelmina Wright, and Paula Xinis were initially scheduled to be voted out of the Judiciary Committee before the Senate’s summer break. Grassley postponed that vote too. Needlessly delaying their committee votes serves no purpose other than keeping President Obama from appointing judges.
Summer is over. It’s time Grassley and Senate Republicans get back to the work of the Senate and hold votes on judicial nominees.
Over the weekend, Eastern District of Texas Judge Michael Schneider announced that he’ll leave active duty and take “senior status” in January 2016. By providing over four-months’ notice, Judge Schneider gave the Texas senators charged with finding his replacement an opportunity to do what they have never done before: fill a judicial vacancy before the judge actually steps down and further weakens an already strained justice system. Avoiding the disruption of a vacancy is, after all, the whole point of giving advance notice. In other states, senators often begin working on a vacancy as soon as it’s announced. But not Senators John Cornyn and Ted Cruz. Instead, they have watched vacancies pile up—ignoring, in some cases, more than a year of notice. They have refused to take action until a judge has left the bench, or even long afterward.
Nine Texas federal district judges have stepped down while Cornyn and Cruz have been in office. In each case the judge left before the senators even asked candidates to submit applications. That slow-motion process is contrary not just to common practice nationwide, but to the precedent John Cornyn himself established when fellow-Republican George W. Bush was in office. When Cornyn and Republican Kay Bailey Hutchison served in the Senate under President Bush, five Texas judges gave advance notice of their departure, and for all five the senators recommended replacements well before the vacancies became current. For three of the seats, President Bush was able to make a nomination before the outgoing judge left the bench.
With Cornyn and Cruz dragging their feet under President Obama, Texas has become the epicenter of a growing judicial vacancy crisis. Including two seats on the Fifth Circuit, Texas has nine current judicial vacancies (the most of any state in the country), three of which have been vacant for over two years. Seven of the vacancies are officially designated “judicial emergencies” because of crushing caseloads and desperately needed judges. The extraordinary number of vacancies requires Texas’s remaining active judges to travel—sometimes for hours—to help neighboring courts manage their dockets.
Texas has been in dire need of more judges for years, but Judge Schneider’s vacancy in particular should provide extra incentive for Cornyn and Cruz to avoid delay and take immediate action. The Eastern District of Texas is the second busiest court in the country. It’s so overburdened that the Judicial Conference of the United States called for adding two new judgeships, in addition to filling existing vacancies.
What’s more, the courthouse in Tyler, Texas, where Judge Schneider presides, is already down one judge due to the recent retirement of Judge Leonard Davis. Judge Davis provided almost a year’s notice before retiring in May 2015, and explained in his retirement letter that, without a swift replacement, it would be difficult for the remaining judges to “continue to fulfill their constitutional responsibilities to the citizens of East Texas.” The Tyler Area Chamber of Commerce and Tyler Economic Development Council also urged Cornyn and Cruz to ensure the “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler.” Yet despite these pleas from those most affected by vacancies—the people and businesses who rely on courts to provide justice, and the judges who must work longer and harder to meet growing caseloads—Cornyn and Cruz continue to play politics with the courts, and have not yet started the process to find Judge Davis’s replacement.
Senator Cornyn says he “work[s] . . . to fill openings as they arise,” but he and Senator Cruz can do much better by looking for replacements before they are needed. Judge Schneider’s vacancy could be yet another blow to a court system that for years has been pummeled by a barrage of new vacancies, or it could signify a turning point for Texas courts. Senators Cornyn and Cruz have a choice: let the Texas vacancy crisis grow even worse, or start looking for the judges Texans desperately need.
In mid-July, the Center for Medical Progress, a pseudo-bioethics advocacy group, began posting videos online falsely accusing Planned Parenthood of trafficking in fetal tissue, and prompting a firestorm of attacks against the women’s health organization. Senator Joni Ernst, R-Iowa, soon after introduced a bill to defund Planned Parenthood. Eighteen GOP Senators even pledged to force a government shutdown unless it is successful. Though the bill failed to pass a procedural vote earlier this week, the efforts of its supporters are far from over.
While the bill ostensibly responded to the allegations in the videos, it is but the latest in a string of legislative and judicial attacks on women. Even before the videos, anti-choice advocates fought at every turn to defund and eliminate Planned Parenthood. Their goal is the complete reversal of Roe v. Wade, and with it, women’s constitutional right to reproductive freedom. Heavily edited and mischaracterized videos are a convenient way to generate faux-outrage, but the attacks on women’s health were ongoing long before them.
Even before the videos, anti-choice advocates were engaged in an ongoing two-pronged strategy: use lawsuits based on religious freedom to cut off access to contraception, and enact draconian state laws that make safe, affordable abortions almost impossible to obtain. On both fronts, the activists have been helped by conservative judges.
In a Supreme Court case decided last year, Burwell v. Hobby Lobby, the Court ruled that, despite the Affordable Care Act’s contraceptive mandate, closely-held, for-profit corporations could invoke the religious beliefs of their owners to deny employees health insurance that covers contraceptives. The decision left important questions regarding women’s health not to the women themselves, but to their bosses.
In the year since, conservatives have returned to court seeking to drastically expand the ruling. Consistent with the decision, the Obama administration implemented exemption rules for religious institutions and other organizations like Hobby Lobby who object to providing contraception. These groups would only need to report their objection to their insurance company or the federal government, and then the cost of employees’ birth control will be paid by the government.
But for fifty-six nonprofit organizations, even that was a step too far. They filed a variety of suits challenging their already minimal obligation under the mandate. Many argued that simply notifying the government they were opting out of the mandate placed a “substantial burden” on their exercise of religion. In rejecting one suit brought by Wheaton College, Seventh Circuit Judge Richard Posner explained how the school misconceived its legal obligations:
“[W]hen Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers . . . that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans,” explained Judge Richard Posner in a Seventh Circuit ruling against the college.
Although the government has so far won all six cases decided in the courts of appeals, the real-world results have been less rosy. After losing its suit, Wheaton College chose to stop providing student health insurance of any kind in order to avoid the non-existent requirement that with insurance it must also provide emergency contraception.
The issue may soon return to the Supreme Court. There are currently six appeals involving the contraception mandate pending at the Court. That number is likely to grow as nine other cases are still pending in the circuit courts.
As those cases percolate, state lawmakers are striking at the heart of Roe itself and finding support from conservative judges. In June, the Fifth Circuit upheld a series of Texas anti-abortion laws that are some of the strictest in the country. The provisions require all clinics to have the same building equipment and staffing standards as hospital-style surgical centers, and for doctors to have admitting privileges at an area hospital. Disguised as a public safety protection, these laws are designed to be impossible to comply with. The result is the potential permanent closure of almost half of Texas’ few remaining abortion clinics.
Mississippi is currently seeking certiorari at the Supreme Court to close its last remaining abortion clinic, a feat it has been attempting for years. We tell the story of that clinic in our short documentary, Roe At Risk. And an Eighth Circuit decision last month, while preserving abortion rights in North Dakota for the moment, spent the majority of its opinion urging that Roe be overturned.
Republicans may not have succeeded in defunding Planned Parenthood this week, but their attempt is nothing new. And anti-choice advocates are stepping up the fight. The misleading and heavily edited Planned Parenthood videos are an excuse to push for what they’ve wanted for decades: an end to women’s reproductive freedoms.