Another judicial vacancy is coming up, but Senators Cornyn and Cruz have shown little urgency in filling the ones that already exist

By Michelle D. Schwartz, Director of Justice Programs


Sen. Ted Cruz

Sen. Ted Cruz

Last week, U.S. District Judge Robert Junell, from the Western District of Texas, announced his plans to take senior status on February 13, 2015.  That’s right, 2015.  As so many federal judges have before him, Judge Junell gave plenty of notice, in order to provide enough time for a replacement to be named before he reduces his caseload.

However, Judge Junell is skeptical that 12-plus months’ notice will be sufficient.  According to Jon Vanderlaan at the Odessa American, “Junell said he’s not fully confident someone will take his position in time for a seamless transition.”

That lack of confidence might be well-placed if Judge Junell had given only a few weeks’ notice.  After all, it does take some time for home-state senators to identify potential nominees and make recommendations to the President, for the White House to vet those potential nominees, and for the Senate confirmation process to play out once nominations are made.  But, again, Judge Junell gave more than a year’s notice—much more than enough time.

So perhaps the concern is that filling the seat won’t be a big priority because the people of West Texas can do without a full-time judge on that bench.  But, with “more than 1,000 criminal defendants in 2013, the most of any judge in the Western District of Texas,” again according to the Odessa American, this bench should not remain empty for long.

How, then, to explain Judge Junell’s concerns? 

Maybe he’s been watching the effort—or seeming lack thereof—to fill the seat of his former Western District colleague, retired Judge Royal Furgeson.  On Aug. 1, 2008, Judge Furgeson announced his intention to assume senior status, which he did on Nov. 30 of that year.  Judge Furgeson served as a senior judge for four and a half years before retiring on May 31, 2013, to become the dean of the University of North Texas at Dallas College of Law. It has now been more than 2,000 days since Judge Furgeson announced his plan to go senior, and still no new judge is warming his bench.  So perhaps Judge Junell is correct to doubt that 380 days’ notice will suffice.

And if he is correct, the problem rests with Senators John Cornyn and Ted Cruz.  As AFJ President Nan Aron wrote in the Dallas Morning News in November,

By longstanding tradition, for most vacancies—particularly on the district courts—the process starts not with the president but with home state senators. They are expected to screen potential nominees and make recommendations to the president. In fact, when President Obama first took office in 2009, every single Republican senator—including Sen. Cornyn—sent him a letter saying they would block any nominee from their states unless they were first consulted about and approved of the nominee. In many states, the senators create a committee to screen potential nominees.

The Texas Senators took their sweet time setting up their vetting committee, and they’ve similarly been in little rush to turn their Federal Judicial Evaluation Committee’s work into recommendations for the White House.  As a result, of the 10 current and three future federal judicial vacancies in Texas, only one nominee has been named.  And, that nominee is none other than Judge Gregg Costa of the Western District of Texas, meaning that if he is confirmed there will be a third vacancy in that district.  (Before he gets confirmed, however, or even gets a hearing in the Senate Judiciary Committee, Senators Cornyn and Cruz will have to allow his nomination to move forward.  But that’s a story for another day.)

At the same time that Senator Cornyn has engaged in this foot-dragging, he has hypocritically blamed President Obama for the lack of nominees in Texas.  When pushed on the vacancies in his state, Cornyn ignored  the letter he signed in 2009 and said, , “The president’s got to nominate somebody before the Senate can act on it,” and asked, “Well why don’t you tell the White House to nominate some people?”  If Cornyn and Cruz would commit to allowing those nominees to move forward, rather than abusing home-state senator courtesies that give them a veto power over Texas nominees, no doubt the president would.

Last November, 37 Texas groups sent a letter to Senators Cornyn and Cruz urging them “to swiftly name qualified candidates for the federal judicial vacancies in Texas” and “listen to the voices of thousands of your constituents who are calling for an end to Texas’s judicial vacancy crisis.”

Maybe it’s time for Judge Junell to add his powerful voice to that chorus.