It didn’t take long after news broke of Justice Antonin Scalia’s death for Republicans in the Senate to pledge to obstruct any attempt by President Obama to fill the vacancy on the Supreme Court.

last updated 9/6/16

Texas Senators John Cornyn and Ted Cruz, both members of the Senate Judiciary Committee, joined their colleagues in this call for unprecedented obstruction, with Cruz going even further and vowing to filibuster any nominee before one was even announced. For months, they’ve upheld their obstructionist pledge, refusing even to consider the nomination of the eminently qualified Chief Judge Merrick Garland. This obstruction is extreme but hardly new for the Texas senators. For years, they’ve systematically delayed and obstructed filling federal judicial vacancies in Texas, including on federal trial courts and the Fifth Circuit Court of Appeals, showing that they care more about frustrating President Obama and waging a political battle over the courts than ensuring the people of Texas have access to a fully-staffed judiciary. Blocking a Supreme Court nominee is also consistent with how the Senate’s Republican majority has treated all judicial nominees. The Senate confirmed only 11 judges in all of 2015, which is the lowest single-year total since 1960. And with only 11 more judges confirmed so far in 2016, this two-year Congress is on pace for the lowest number of judicial confirmations since 1951-52.

The effects of this obstruction have reverberated nationwide. For example,  forty percent of the district judgeships in the Western District of Pennsylvania are vacant; five federal judgeships in Alabama have sat vacant for a combined nine years; and New Jersey had four new vacancies in 2015 (second only to New York which had 5 in 2015), two of which remain vacant. But the epicenter of this growing problem is Cornyn and Cruz’s home state of Texas, which continues to have far more vacancies and judicial emergencies than any other state in the country.

  • Texas, with nine percent of America’s population, now has 13 percent (12 of 90) of the Nation’s current federal judicial vacancies.
  • It also has 18 percent of all the judicial vacancies for which no one even has been nominated. Seven of 38 such vacancies nationwide are in the Lone Star State. In contrast, New York has four and California has one.
  • Seven judicial vacancies in Texas do not have a nominee.
  • Right now, five Texas benches 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 district court judgeships has been vacant more than 5 years, another has been vacant for more than three years, and the two Fifth Circuit seats have been vacant for almost seven years combined.
  • All 12 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 nine new judgeships to meet its growing federal caseload, in particular criminal and immigration cases, which have skyrocketed in recent years.

Failure to Fill Future Vacancies

The list of Texas vacancies continues to grow, in part, because Cornyn and Cruz have refused to screen candidates for district court judgeships (let alone submit formal recommendations to the president) until a seat becomes vacant and the court is already working without its full allotment of judges. None of the vacancies in Texas came as a surprise. To the contrary, all but one outgoing judge announced his or her intention to leave the bench months, and sometimes more than a year, in advance. Yet in each case, Cornyn and Cruz declined to start the selection process, if at all, until the vacancy turned current—that is, the incumbent judge actually retired or assumed senior status.

Judge Leonard Davis of the Eastern District announced in June 2014 that he planned to retire in May 2015. In his retirement letter, he warned that longstanding vacancies in the Eastern District make it hard for the remaining judges “to fulfill their constitutional responsibilities to the citizens of East Texas,” and he urged swift confirmation of his successor. In addition, in October 2014 the Tyler Area Chamber of Commerce and Tyler Economic Development Council wrote a joint letter to Cornyn and Cruz urging “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler.” Failing to replace him quickly, they warned, “could have negative economic implications” for the Tyler area.

As expected, Judge Davis retired on May 15, 2015, and the Texas senators had not even asked for applications to fill his seat.

Similarly, Western District Judge Robert Junell gave more than a year’s notice when he announced in January 2014 that he would take senior status in February 2015. Judge Junell’s move to senior status, which became official on February 13, created a new judicial emergency in Texas and left the federal court in Pecos without a trial court judge. While other Western District judges from other cities have scrambled to cover the Pecos caseload—often traveling several hours each way to do so—Cornyn and Cruz waited until April 8 before even soliciting applications.

Western District Judge Philip Martinez had asked the senators to start the process of replacing Judge Junell “at the earliest opportunity,” and emphasized the strain his departure puts on the remaining judges: “Being taken away physically to go hear cases three hours down the road affects what we can do here,” Judge Martinez said. “We need somebody desperately.”

This inefficient approach, which ensures that a court is already shorthanded before the lengthy nomination and confirmation process even begins, contrasts sharply with processes used in other states. For example, senators from Massachusetts, Rhode Island, and Hawaii considered candidates or made recommendations to fill vacancies for seats announced vacant later in 2015. In Minnesota, Senators Al Franken and Amy Klobuchar in February recommended state supreme court Justice Wilhelmina Wright for a district court seat that became vacant in August 2015. President Obama formally nominated Justice Wright on April 15, 2015 and she was confirmed on January 19, 2016.

Indeed, Cornyn himself moved faster under the previous administration. Under President George W. Bush, Cornyn and then-Senator Kay Bailey Hutchison faced five new district court vacancies, and each time they made recommendations to the president before the vacancy became current.

As Judges Davis and Martinez explained in their requests for a faster nomination process, judicial vacancies threaten the fair administration of justice, and undermine the Constitution’s promise of equal justice under law.

In Texas, the 12 current judicial vacancies have been without a judge for a combined 25 years. Senators Cornyn and Cruz have repeatedly prioritized partisan politics over filling longstanding judicial vacancies. Their obstruction now threatens to cripple the Supreme Court and the entire nation for the foreseeable future.

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