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.