2014 has seen significant progress in easing the judicial vacancy crisis. In fact, things are improving in much of the country.
But progress is slow in Texas, which remains the epicenter of the vacancy crisis in our federal courts.
- Texas, with nine percent of America’s population, now has 19 percent of all the judicial vacancies for which no one even has been nominated. Five of 27 such vacancies nationwide are in the Lone Star State. In contrast, California has two such vacancies and New York has none.
- Right now, three Texas seats on United States district courts are vacant without nominees.
- There are two more Texas vacancies on the U.S. Court of Appeals for the Fifth Circuit that lack a nominee.
- One of the Texas judgeships has been vacant more than five years; three others have been vacant more than two years.
- Eight vacancies are so severe that the Administrative Office of the United States Courts has declared them judicial emergencies, accounting for 38 percent of the judicial emergencies nationwide.
- Texas wouldn’t have enough judges even if every bench were filled. According to the Judicial Conference of the United States—headed by Chief Justice John Roberts—Texas needs at least eight new judgeships to meet its growing federal caseload, in particular criminal cases, which have skyrocketed in recent years.
- At least four more Texas federal judgeships will become vacant early next year.
Senators John Cornyn and Ted Cruz play a pivotal role in filling federal judicial vacancies in Texas. But Sen. Cornyn has tried to blame President Obama and Senate Democrats for these vacancies.
First, he complained that the president has failed to nominate people to fill them. But there is much more to the process. By longstanding tradition, for most vacancies, the process starts with home-state senators. They are expected to screen potential nominees and make recommendations to the president. Although six Texas nominees were confirmed during President Obama’s first term, Cornyn and then-Senator Kay Bailey Hutchison then shut down the process for selecting nominees, meaning Obama began his second term with seven Texas vacancies without nominees. Yet it took until April of last year for Cornyn and Cruz even to name a committee to screen potential nominees—and they didn’t include all of the vacancies.
Then, Cornyn claimed that the vacancy crisis somehow was related to the time it took for the full Senate to confirm nominees for the U.S. Court of Appeals for the D.C. Circuit. The two are, of course, entirely unrelated—and the delays involving the D.C. Circuit were caused by Cornyn, Cruz and their fellow Republicans.
There has been some progress of late:
- The committee sent recommendations to the senators for six district court seats at the end of 2013. In early April, it was reported that the senators had forwarded names for three out of six of those benches to the White House. On June 26, the White House sent three nominees to the Senate. On September 9, the Senate Judiciary Committee held a hearing on the three nominees, at which Senators Cornyn and Cruz reiterated their support.We are pleased that one of those nominees would be the first openly gay judge on the Texas federal courts—and the first openly gay federal judge recommended by two Republican senators.
- On May 20, Texas saw its first federal judicial confirmation in two years when Judge Gregg Costa was confirmed unanimously to the Fifth Circuit.
- On July 2, Cornyn and Cruz asked the committee to start screening nominees for two other district court vacancies, one in the Northern District (Dallas) and another in the Southern District (Galveston).
- On Sept. 18, President Obama made three nominations to the Southern District, including two that will fill judicial emergencies. Senators Cornyn and Cruz recommended these nominees after an initial review by Texas’s Federal Judicial Evaluation Committee. These nominations will add valuable diversity to Texas’s federal courts: Judges Al Bennett and George C. Hanks, Jr. are African American and Judge Jose Olvera, Jr. is Hispanic. Texas now has three vacant district court benches without a nominee. The committee has screened candidates and made recommendations to the senators for one of these vacancies, and it has closed the application process for the remaining two.
But much work remains. There are those two Texas seats on the Fifth Circuit sitting empty—and no plan laid out for filling them. Three district court benches await nominees. The nominees for three more vacancies who have been sent to the Senate are almost certain to encounter the same delay tactics Republicans have used on every single nominee this year. And four more benches will be empty in less than a year.
There’s no time to waste in filling each and every one of these vacancies.