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.
There is no doubt the state of Texas is at the epicenter of what is a growing judicial vacancy crisis. It has the most judicial vacancies of any state in the country (nine, all without a nominee), a quarter of the nation’s judicial emergencies, and some of the longest-standing vacancies in the judiciary. Former Southern District of Texas Judge Janis Graham Jack’s seat has been vacant for over four years. Former Fifth Circuit Judge Emilio M. Garza’s vacant Texas seat is fast approaching its third anniversary.
Yet, despite this dire situation, Senator John Cornyn, R-Texas, wrote in a recent letter to the editor that he had been “working . . . to fill openings as they arise,” pointing to the confirmation of 12 Texas judges in the past six years of President Obama’s administration.
While we commend Senator Cornyn for working with the president to find 12 qualified judges, that hasn’t been nearly enough to keep pace with the growing number of vacancies in the state. As we have noted many, many times, confirmation totals are meaningless unless considered beside the number of vacancies that need to be filled. There is no magic number of confirmations that is “enough”—empty benches need judges.
And far from “filling openings as they arise,” the senator’s sluggish pace on nominations and confirmations has allowed Texas vacancies to amass. As we detail in our report on Texas, Senators Cornyn and Ted Cruz, R-Texas, have refused to screen candidates for seats they know will soon be vacant, waiting instead until the judge leaves office with no one to take on their workloads. Several judges—to no avail—have given the senators a year’s notice of their intent to retire and urged them to start seeking a replacement immediately. This inefficient approach only allows current vacancies to languish and new retirements to pile up.
The nine vacant Texas seats have now sat empty for a combined 13 years. If Senator Cornyn is serious about finding “high-caliber legal minds” for the bench, there are plenty of places to start. Rather than focus on what he’s accomplished, it’s time to look at what’s left to do.
It’s an inescapable fact that judicial vacancies have worsened under Republican Senate leadership, but that doesn’t mean the GOP accepts responsibility. After the Senate finally confirmed its first judge of the year yesterday, Senator John Cornyn, R-Texas, was asked about the rising number of vacancies—an astonishing 10 of which are in Texas—since Republicans took over the Senate.
He blamed the president.
“We can’t nominate the judges,” he told the Dallas Morning News. “The president has to nominate the judges. The White House doesn’t seem to be making this a priority. It’s not really a partisan difference.”
This remarkable claim ignores both the Senate’s failure to confirm existing nominees, and the essential role that home-state senators play in nominating judges for vacancies in their own states.
Let’s look at the facts.
It took more than three months for the Republican-controlled Senate to confirm its first judge of 2015. Southern District of Texas Judge Al Bennett, who had been recommended to the president by Cornyn and fellow Texas Republican Ted Cruz, was unanimously confirmed yesterday after waiting more than six weeks for a floor vote. By this time in 2007, the penultimate year of the George W. Bush administration, Senate Democrats had confirmed 15 judges.
The delay to confirm Bennett is just one example of Senate Republicans’ do-nothing approach to judicial nominations. There are still three district court nominees pending on the Senate floor, including two more nominated to critical vacancies in Texas’s overburdened Southern District, and one to the District of Utah. All three have the support of their Republican home-state senators. Yet instead of pushing Majority Leader Mitch McConnell, R-Ky., to schedule votes for Texas judges, Cornyn—who is the Senate’s Majority Whip, not merely a rank-and-file member—dismisses the vacancy problem with a partisan attack on the president.
In the Judiciary Committee, Chairman Chuck Grassley, R-Iowa, has held only two confirmation hearings in 2015, passing over five nominees who have been waiting for a hearing since November 2014.
While the Senate sits on its hands, judicial vacancies have jumped from 44 to 54, and “judicial
emergencies,” the official designation for courts with the most dire need for judges, have nearly doubled, increasing from 12 to 23. These numbers could be reduced by confirmations, but the Senate hasn’t acted.
Republicans have also failed to recommend nominees for vacancies in their home states. As Cornyn well knows, home-state senators typically take the lead in selecting nominees, particularly for district court vacancies, and the president will not nominate without the senators’ support. Cornyn’s explanation helpfully ignores this practice, but it is no accident that 89 percent (32 of 36) of current judicial vacancies without a nominee are in states with at least one Republican senator.
What’s more, the state in most desperate need of judicial nominees, by far, is Texas. There are nine district court vacancies in Texas (eight are current and another is coming next month), and the White House is waiting for Cornyn and Cruz to submit recommendations for seven of them. Worse, five of these vacancies are judicial emergencies, meaning that Texas’s federal courts are facing a crushing caseload they cannot handle without more judges.
Sadly, this isn’t the first time that Cornyn has deflected blame on Texas vacancies. Back in May 2013, during a Judiciary Committee hearing, Cornyn said that “the president has to nominate someone before the Senate can act on it. It’s as simple as that.” In response, Senators Sheldon Whitehouse, D-RI, and Patrick Leahy, D-VT, explained why the president cannot unilaterally nominate judges in Texas. We do so again here, but we’d rather Cornyn, and the full Senate, simply do the work of confirming judges so that judges can do the work of providing justice for the American people.
Texas Senator Ted Cruz clerked for then-Chief Justice William Rehnquist, argued before the Supreme Court nine times, and was Texas’s Solicitor General. One might suspect he knows a thing or two about the Constitution.
But his knowledge of that document appears to be lacking – and his own constituents in Texas may end up paying the price.
Although three judicial nominees to longstanding Texas vacancies are set for a hearing next week, Senator Cruz has doubled down on his position that the Republican-controlled Senate should “not confirm a single nominee—executive or judicial—outside of vital national security positions” until President Obama rescinds his recent executive order on immigration.
Senator Cruz himself recommended these nominees to the president, and two of the three would fill benches considered “judicial emergencies” because of overwhelming caseloads in the Southern District of Texas. But the most striking thing about Cruz’s position is that it’s based on a bizarre and obvious misreading of the Constitution.
In a recent Politico Op-Ed, Cruz claimed that holding nominees hostage “is a potent tool given to Congress by the Constitution explicitly to act as a check on executive power. It is a constitutional power of the majority leader alone, and it would serve as a significant deterrent to a lawless president.” Then, responding to CQ Roll Call today, Cruz’s spokesperson said that “Sen. Cruz stands behind what he said” in Politico and that “holding nominations is a constitutional power given to Senate leadership and it is up to leadership to exercise that power.”
The problem is that while the Constitution empowers the full Senate to provide “Advice and Consent” on nominations, it makes no mention of Senate leadership, nor does it confer power to “hold nominations” on any individual senator—majority leader or otherwise. And there is no basis to claim that advice and consent exists “explicitly” to deter the president from issuing executive orders completely unrelated to judicial nominations.
There is no question that Senate Republicans have several means of obstructing the president’s nominees if they so choose; that was true even before they became the majority. But it’s misleading at best to give mere partisan obstruction and political gamesmanship the imprimatur of the Constitution. Ted Cruz knows better, and we think the American people do too.
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.
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.
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
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? Read more