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.
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.
With Majority Leader Mitch McConnell stalling every nominee on the Senate floor, judicial confirmations have been hard to come by in 2015. Only four judges have been confirmed, and even nominees selected by their own Republican senators have suffered from McConnell’s obstruction.
On May 21, when the Senate doubled its grand total of judicial confirmations from two to four, it did so by unanimously confirming two district court judges who each endured a nearly three-month wait on the Senate calendar.
Such delay is never justified, particularly for uncontroversial consensus nominees. The Senate has a constitutional obligation to confirm judges, and long delays can hamper the administration of justice and keep everyday Americans locked out of court.
Four district court nominees voted out of the Judiciary Committee today are especially compelling examples of this point, as they’ve been nominated to some of the most overburdened courts in the country.Three of the four would fill officially designated “judicial emergencies,” and the fourth, a nominee to the Western District of New York, would sit in a Buffalo courthouse that is now without an active judge for the first time in at least 55 years. These nominees were voted out of committee with bipartisan support, and should be immediately confirmed so they can start working for the American people.
Dale Drozd would fill a longstanding judicial emergency (the vacancy is nearly 1000 days old) in the Eastern District of California, where he currently serves as a Magistrate Judge. At his confirmation hearing, Drozd testified about the district’s crushing caseload that has persisted for more than a decade. He said that the court was in a “crisis situation” with judges effectively “maxed out.” The overwhelming caseload, Drozd said, “has tremendous impact on our ability to deliver justice within our district.”
EDCA Judge Lawrence J. O’Neill echoed that same concern when the Wall Street Journal asked him about growing caseloads and long delays in the district. “Over the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’” he said. “And the simple answer, which I cannot give them, is this: It is not justice. We know it.”
Indeed, Judge Drozd’s confirmation would only begin to solve the district’s problems. The non-partisan Judicial Conference of the United States found that caseloads would remain too high even if every vacancy were filled, and recommended Congress double the number of EDCA judgeships from six to 12.
In the Western District of New York, multiple vacancies in Buffalo leave the city without a single active federal judge for the first time in over half a century. Lawrence Vilardo, voted out of committee today, would fill one of them. Despite the willingness of some senior judges to continue taking cases, Buffalo is currently experiencing one of the nation’s worst backlogs, with civil cases taking an average of five years to go to trial. As reported in The Buffalo News, 14 percent of the civil cases in the Western District are more than three years old, and the district’s 744 new cases per judge last year place it in the top 10 of federal districts nationwide.
Magistrate Judge Hugh B. Scott, who sits in Buffalo, just announced that he is stepping down from active status, but will continue to hear cases because the court’s workload will not permit him to retire. “I could have completely retired,” he told The Buffalo News, “but I know the caseload here. Quite frankly, I don’t want to burden the other magistrate judges with my caseload.”
The other two New York nominees, LaShann DeArcy Hall and Ann Donnelly, are both nominated to the Eastern District, and have been waiting since last November to fill judicial emergencies.
On Mitch McConnell’s watch, the number of judicial vacancies, including those designated as judicial emergencies, has steadily grown over the last five months. But with the four nominees voted out of committee today (and the three pending nominees they join on the Senate floor), McConnell and the Republican majority have an opportunity to do the right thing: confirm them now.
Since Election Day, numerous stories have said that Democrats and progressive groups want ju dges confirmed in the upcoming “lame duck” session because it will be harder to get confirmations once the Republicans take control of the Senate in January. But the most important reasons for confirming judges during the lame duck would apply no matter who was slated to control the Senate next year.
Here are four reasons why the Senate should confirm at least 24 district court nominees—16 of whom are pending on the floor and eight of whom are ready to be reported out of the Judiciary Committee—before the end of the year:
- It’s the Senate’s job. As AFJ President Nan Aron said with respect to Attorney General nominee Loretta Lynch, “The Constitution compels the Senate to live up to its responsibility to advise and consent at all times, including so-called lame duck sessions.” That includes judicial nominees. We were fighting for swift confirmations before the election and there’s no reason to stop now.
- The fair administration of justice demands it. When judgeships sit vacant, it’s not the Alliance for Justice, the President, or the Senate that suffers—it’s the American people. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice. These injustices are particularly acute in courts that have vacancies designated as “judicial emergencies” because they simply don’t have enough judges to handle their caseloads. Paul Gordon at People for the American Way has done an excellent job documenting just how great the need is to fill the vacancies for which there are pending nominees.
- Delaying confirmations wastes time and taxpayer money. When nominees are not confirmed before the end of a Congress, they must be re-nominated in the new Congress. That’s not just a formality. It means reams of duplicative paperwork for Justice Department and White House employees. It means the Judiciary Committee has to waste time with duplicative confirmation hearings and committee votes for nominees who have already been vetted and approved. And it means that precious Senate floor time is spent doing last year’s work. Because Senate Republican obstruction led to a whole host of nominees being returned to the President at the end of last year, the Senate spent the first five months of 2014 voting on judicial nominees from 2013. With so much that needs to be done for the American people, it makes no sense to spend next year doing this year’s work.
- The expiration of agreed-upon Senate rules changes could lead to even more time wasting. At the beginning of the 113th Congress, an agreement was reached to reduce post-cloture “debate” time for district court nominees from 30 hours to 2 hours equally divided. In practice, Democrats have yielded back their one hour of post-cloture time, meaning district court nominations have taken just one hour each after cloture is invoked. That deal goes away at the end of this Congress. So if Senate Republicans continue to insist on cloture votes for every single nominee (as they have for the past year), the Senate could spend 24 hours to confirm these 24 nominees now, or 720 hours to do the same work next year. And keep in mind that the Senate can’t do anything else during post-cloture time unless all 100 senators agree.
These are the issues we’ve been talking about since well before the election, and they’re the reasons we’re continuing to fight for confirmations now.
On Tuesday, the Senate Judiciary Committee held a confirmation hearing for three district court nominees from Texas, clearing an important hurdle on the path toward resolving the judicial vacancy crisis in that state.
In June, President Obama nominated Robert “Trey” Schroeder and U.S. Magistrate Judge Amos Mazzant to the Eastern District, and U.S. Attorney Robert Pitman to the Western District, based on the recommendations of Texas Senators John Cornyn and Ted Cruz. On Tuesday, Cornyn and Cruz, both members of the Judiciary Committee, attended the hearing and affirmed their support for the three nominees. Cruz lauded the nominees’ “impressive professional credentials and long careers demonstrating the fidelity to law that we expect from our federal judges.” Both Senators also praised the bipartisan Federal Judicial Evaluation Committee, made up of lawyers and judges throughout Texas, that initially screened candidates and named finalists for the Senators to review.
The people of Texas need all three nominees confirmed swiftly—each will fill a seat the Administrative Office of the U.S. Courts has designated a “judicial emergency,” a designation for courts that simply do not have enough judges to handle their existing caseloads. In particular, Robert Pitman would fill a seat in the Western District that has been vacant for nearly six years and is now the second-oldest vacancy in the entire federal judiciary. Pitman’s nomination also has historical significance for the diversity of our courts: Cruz and Cornyn are the first pair of Republican Senators to recommend an openly gay judicial nominee. Once confirmed, Pitman will be the first openly gay federal judge to serve in Texas.
Tuesday’s hearing marks progress for the federal courts in Texas, but there remains much work to be done. There are still eight current vacancies in Texas that do not yet have a nominee, including two on the Fifth Circuit Court of Appeals. Five of these vacancies are “judicial emergencies.” Those five represent 42 percent of the entire nation’s judicial emergencies without a nominee. In addition, four more Texas district court judges have announced their intention to retire or take senior status, and their seats will become vacant early next year. As this list of Texas vacancies grows longer, and longstanding vacancies remain unfilled, everyday Texans find it harder to gain access to the courts and the administration of justice suffers.
By Kyle C. Barry
AFJ Legislative Counsel
Last week, the Heritage Foundation’s Elizabeth Slattery attacked a Washington Post article about the recent uptick in confirmations for President Obama’s judicial nominees, using it to argue that the Senate has treated Obama’s nominees more favorably than those of President George W. Bush. Slattery’s piece presents a one-sided and ultimately flawed analysis that omits key data points, and fails to acknowledge how Senate Republicans continue to obstruct the confirmation process and block the president from filling a growing list of judicial vacancies.
Following John Owens’ confirmation to the Ninth Circuit, the Post observed that 19 of Obama’s judicial nominees have been confirmed in 2014 so far (the best first-quarter of any year during his administration), and that Obama has now appointed 235 judges to the federal bench. The Post compared this to the 324 federal judges that Bush appointed during his entire two terms, and reasoned that “if the Senate keeps up close to its current pace, Obama might, after six years, get relatively close to Bush’s eight-year total.” In other words, the Washington Post concluded that things are looking up for Obama’s judicial nominees, even compared to President Bush.
But the Heritage Foundation claims the Post did not go far enough in explaining how conditions have improved for judicial nominees in the Senate. In a blog post titled “Washington Post Gets the Numbers Wrong on Judicial Nominees,” Slattery zeroes in on the total number of confirmations in the first 15 months of each president’s second term—62 for Obama, 28 for Bush—and uses this data to conclude that “Obama’s confirmation rate has actually been outpacing Bush’s 2-to-1.” “At this rate,” Slattery argues, “Obama is set to steamroll Bush’s total number of confirmations.”
The problem here is that simply comparing confirmation totals from an isolated 15 month period is hardly an adequate proxy for each president’s ability to fill vacancies and move nominees through the confirmation process. As an initial matter, the overall number of confirmations for Obama and Bush at this point in their presidencies is about the same—Obama has now appointed 235 federal judges, while Bush had appointed 233. Taking the full picture into account, Slattery’s “2-to-1” ratio is plainly arbitrary and incomplete.
Next, in any event, comparing the total number of confirmations is meaningless without also considering the number of vacancies each president could possibly fill, and the number of nominees the Senate could possibly confirm. Here, Obama has had 35 more total vacancies thus far in his presidency than Bush, and he’s also made 38 more nominations. That alone suggests that, all else being equal or more favorable to President Obama, he should have a much higher number of confirmations than President Bush. Moreover, Obama’s judicial confirmations have not kept pace with new vacancies. During his administration, the number of vacancies has increased by 30—from 55 to the current total of 85. Conversely, the confirmations of President Bush’s judicial nominees reduced the total number of vacancies by 27—from 80 when he took office, to 53 on April 1, 2006.
Given this discrepancy in the number of vacancies and nominations, both the rate of confirmations—the percentage of nominees that the Senate has confirmed—and the rate of judicial appointments—the percentage of vacancies the president has been able to fill—provide a far more useful comparison than the raw total of confirmations. And it’s here that Obama clearly lags behind Bush: Only 79% of Obama’s nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%. By these measures, which account for essential variables that the Heritage Foundation ignored, Bush fared significantly better in getting his nominees confirmed and staffing the federal judiciary.
Finally, Slattery’s analysis ignores the ways in which Republican obstruction contributes to Obama’s growing number of vacancies and relatively low confirmation rate. Currently, there’s a backlog of 31 judicial nominees waiting on the Senate floor for a confirmation vote, including six nominees to the vitally important circuit courts of appeals, which, because the Supreme Court hears so few cases, often have the final say on questions of federal law. All of these nominees could be confirmed quickly through unanimous consent or agreed-upon votes, the traditional means of confirming judges. But Senate Republicans have slowed the process by requiring a cloture vote on even the most noncontroversial nominees. For example, a trio of district court judges recently confirmed to the Eastern District of Michigan all failed to earn the 60 votes that Senate rules used to require to invoke cloture. They were then confirmed 98-0, 98-0, and 97-0, respectively, revealing that the demand for cloture votes was merely a charade intended only to waste time. Similarly, Tenth Circuit nominee Carolyn McHugh suffered through a meaningless 62-34 cloture vote despite having the home state support of Utah’s two Republican Senators. She was confirmed 98-0.
Vacancies also remain high because Republican Senators delay in recommending nominees for seats in their home states. As a result, 31 of the 37 current vacancies without a nominee are in a state with at least one Republican Senator, and 8 of those 31 are critical “judicial emergencies.” Regardless of how many confirmations the Senate records, Americans in these states will be denied justice as they wait for overburdened and understaffed courts to catch up with rising caseloads.
That 19 judges have been confirmed this year (and that Obama has now confirmed more judges at this point in his presidency than Bush) reflects real progress for the president’s judicial nominees. But focusing on that statistic alone masks the substantial work left to be done. In particular, as nominees wait in line for a vote and Republicans continue to waste valuable floor time, our federal justice system suffers. This isn’t the time for the Senate to accept delays and obstruction as the new normal of the confirmation process, or to celebrate what’s been accomplished so far. This is the time to make the health of our federal courts a priority and take action.
The Senate ushered in the rules reform era by confirming Patricia Millett and Nina Pillard, two nominees to the D.C. Circuit Court of Appeals. The Senate is expected to confirm President Obama’s other D.C. Circuit nominee, Judge Robert Wilkins, before the December recess. This is great news for our federal judiciary and the administration of justice, but Republicans and conservative commentators are still trying—cynically and disingenuously—to make you believe otherwise.
Once the Senate changed its rules, the D.C. Circuit nominees were all but assured confirmation, and their extremist opponents were left with little recourse. So they’re getting desperate. One tactic has been feigned concern over the “judicial emergencies” that exist in various federal courts around the country. Courts have “judicial emergencies” when, because of vacancies, there simply aren’t enough judges to handle the caseload. There are 38 judicial emergencies as of this writing, 17 of which do not have a pending nominee. So why, the Republicans ask, are the Democrats “wasting” time on D.C. Circuit vacancies when there is more of a need elsewhere? Just yesterday, Minority Leader Mitch McConnell, R-Ky., took to the Senate floor to deride Majority Leader Harry Reid, D-Nev., for making the “choice to spend the week on nominations that are not emergencies.”
The right-wing Judicial Crisis Network (formerly known, when it was created during the Bush Administration, as the Judicial Confirmation Network), has been a principal peddler of this view. Its Chief Counsel Carrie Severino has argued further that blame for these emergencies cannot be levied on Republican obstruction, because any use of the filibuster has “had nothing to do with perpetuating judicial emergencies.”
But this argument ignores the fact that obstruction begins long before a nominee reaches the Senate floor, and therefore before the filibuster—the very last hurdle before a confirmation vote—could even be used. Crying foul on judicial emergencies in this way is as absurd as shutting down the government to protest affordable healthcare, and then accusing the Democrats of denying funds to cancer patients when NIH can’t open its doors. (Of course, the Republicans did that too.) Republican Senators have used every delay tactic at their disposal to prevent the President from appointing federal judges in their home states, and the unsurprising result is a growing list of judicial emergencies for which Republicans turn around and blame the President.
Consider the 17 judicial emergencies for which there is no pending nominee. At least 10 of those emergencies can be traced directly to obstruction by home state Republican Senators.
● Six of these emergencies are in Texas—one, in the Western District, is five-years-old—where Senators John Cornyn and Ted Cruz, (and before Cruz, Kay Bailey Hutchison) neglected vacancies for years before finally convening a selection committee that has yet to name finalists.
● In Georgia, Senators Saxby Chambliss and Johnny Isakson are holding Eleventh Circuit nominee Jill Pryor hostage, and demanding a ransom of Republican nominees to fill three emergency vacancies. Pryor would fill a judicial emergency herself if Chambliss and Isakson simply gave their OK.
● In 2010, President Obama nominated law professor Victoria Nourse to fill what is now a judicial emergency on the Seventh Circuit. Nourse had been selected by a Wisconsin selection commission and approved by Wisconsin’s senators at the time. But then newly-elected Republican Sen. Ron Johnson declined to give his support, and her nomination died in 2011.
It’s enough to make you wonder: Why are these Republican Senators spending so much time opposing D.C. Circuit nominees while so many judicial emergencies fester unattended?
There are also 21 judicial emergencies for which a nominee is pending right now, so there is no question that the president has done his duty to put forth nominees for the Senate to confirm. But in eight of these cases, Republican Senators are obstructing by withholding their “blue slips”—a signal of approval—for each nominee. By Senate tradition, a nomination can’t proceed without a blue slip. One of these emergencies is in the Eastern District of North Carolina, which has the single longest district court vacancy in the entire country—the judgeship has been vacant for 2,904 days.
Finally, the Republican judicial emergency argument relies on the false premise that confirming D.C. Circuit judges and filling judicial emergencies are mutually exclusive. In fact, there are eight nominees for judicial emergencies pending on the Senate floor right now, waiting for a vote. Reid filed cloture petitions on three of them Monday night, rendering McConnell’s claim about “spend[ing] the week on nominations that are not emergencies” patently false. If the Republicans were genuinely concerned about judicial emergencies, they would agree to immediately confirm the nominees already on the floor. Instead, they are using every minute of debate time allowed for every nominee Reid wants to confirm before the December recess. This led to a confirmation vote for Nina Pillard at about 1:00 a.m. this morning, and will likely keep the Senate in session through the night, into the weekend, and maybe even through the holidays. The confirmations are all a foregone conclusion, but the Republicans do not care. They are stalling for spite, and for revenge.
It’s clear who really doesn’t care about judicial emergencies