John Cornyn passes the buck on Texas judicial vacancies
By Kyle C. Barry
AFJ Legislative Counsel
Somehow, Texas Senator John Cornyn’s brazen efforts to blame others for the judicial vacancy crisis in Texas have reached a new level of shameless. Cornyn has already blamed the president for failing to nominate judges in Texas, a contention he makes knowing that the White House will not nominate until the home state senators—in this case, Cornyn and fellow Republican Ted Cruz—make formal recommendations. But in a letter to the editor published Saturday, Cornyn makes an even less defensible claim, suggesting, nonsensically, that longstanding judicial vacancies in Texas are the fault of Senate Democrats not “willing to do their part.” In so doing, Cornyn makes no mention of the central role he and Cruz play in nominations, fails to draw any connection between Senate Democrats and his failure to make timely recommendations for judgeships, and ignores the extraordinary work Senate Democrats have done to confirm judges despite relentless and unprecedented Republican obstruction.
As we’ve detailed, the administration of justice in Texas is in crisis. There are 11 federal judgeships currently vacant in Texas (more than any other state), including two seats on the Fifth Circuit Court of Appeals. Of those 11, eight do not yet have a nominee, and seven are “judicial emergencies,” a designation for courts that do not have enough judges to handle their existing caseload. What’s more, even assuming all these vacancies are filled, the nonpartisan Judicial Conference, led by Chief Justice John Roberts, has called for the creation of eight new permanent judgeships in Texas. With such a dramatic shortage of judges, Texans must suffer through long delays to access justice, delays which can often mean that justice is denied altogether.
The blame for this crisis falls largely on Cornyn and Cruz. By longstanding tradition, home state senators have the primary responsibility to screen district court candidates, and the president will not nominate district court judges until the senators have made recommendations and approved the nominations. This restraint is with good reason, because it is difficult if not impossible for a nominee to be confirmed without home state senator support. Thus, the timely review of judicial candidates is one of the most important responsibilities that a senator has. However, although several of Texas’ vacancies have been around for years (one bench in the Western District has been empty since November 2008), Cornyn and Cruz did not begin the application process until last April, and that process didn’t even include all of the current vacancies. Now more than a year later, that process has yielded only three nominations.
In response to this dereliction of duty, the Dallas Morning News called on Cornyn and Cruz to “pick up the pace” in recommending candidates to the White House. But Cornyn thinks that’s unfair because Senate Democrats have likewise failed to “prioritize filling needed judgeships.” Specifically, Cornyn claims that Democrats spent too much time confirming the president’s three nominees to the D.C. Circuit Court of Appeals, while it took “many months” to confirm Judge Gregg Costa, whom both Cornyn and Cruz supported, to a Texas seat on the Fifth Circuit.
Cornyn’s defense, such as it is, fails for two distinct reasons. First, neither the D.C. Circuit nor Judge Costa’s confirmation has even the slightest relation to the longstanding Texas vacancies. The full Senate’s role in confirming judges is entirely separate from the process of soliciting applications and reviewing candidates for vacancies that do not have a nominee. Nothing about time spent on the Senate floor prevents Cornyn and Cruz from doing their jobs back home, and so Cornyn’s argument is more meager attempt at misdirection than substantive response on the merits.
Second, the claim that Senate Democrats are not “willing to do their part” on judicial confirmations, particularly when contrasted with Republican obstruction, is preposterous. The Senate “spent weeks” confirming three D.C. Circuit judges because Senate Republicans filibustered each of them, refusing to permit yes-or-no confirmation votes. This obstruction was prompted not by objections to the nominees’ qualifications, but by a partisan effort to prevent President Obama from appointing anyone to the D.C. Circuit. Indeed, Republicans went so far as to introduce legislation eliminating seats from the D.C. Circuit, and Cornyn himself bizarrely accused the president of “court packing.” That Cornyn now accuses Senate Democrats of dilatory conduct reveals how disingenuous his interest in an expedited nomination process really is.
As for Judge Costa’s confirmation, Cornyn writes that the Senate took “many months just to confirm” him, suggesting that the Senate accomplished nothing else during that time, and that Judge Costa had to wait an unusually long time for confirmation. Neither is true. Judge Costa was confirmed 152 days after he was nominated—third fastest among President Obama’s 50 circuit court appointees. Judge Costa’s confirmation was delayed, but that’s only because Senate Republicans forced a needless cloture vote and then wasted 30 hours of debate time before the Senate could vote. In fact, that’s exactly what Republicans have done for every judicial nominee in 2014. As retribution for Senate rules reform last November, which finally allowed confirmations for the D.C. Circuit nominees, Senate Republicans have wasted as much floor time as possible, requiring cloture votes for even the most non-controversial nominees, and then refusing to vote until the full allotment of debate time has expired. Yet despite this obstruction, Senate Democrats have already confirmed 55 judges this year, compared to just 28 at this point in 2013. With the Republican caucus so committed to gridlock and shutting down confirmations, the continued work of Majority Leader Harry Reid and the Senate Democrats to confirm judges makes clear who really cares about a functioning judiciary.
Ultimately, Cornyn’s rather half-hearted defense depends not just on the supposed failures of Senate Democrats that are irrelevant, but on the failures of Senate Democrats that do not exist. To his credit, he does “agree that judicial vacancies are an impediment to justice,” but until he and Senator Cruz accept responsibility for solving the vacancy crisis in Texas, justice for his constituents will be hard to come by.