The Senate’s Republican majority in 2015 has so far fallen short of its constitutional duty to confirm judicial nominees. The first confirmation vote did not happen until April 13, and only five judges have been confirmed.
There is no question that Republican leadership is pursuing an intentional strategy of delay and obstruct, which may ensure that more vacancies remain for the next president to fill. Indeed, the The Wall Street Journal has urged Senate Republicans to block all circuit court nominees for precisely that reason. But refusing to confirm judges for political gain comes at the expense of Senate Republicans’ own constituents. States with at least one Republican senator account for 36 of the 39 vacancies without nominees (92 percent) and 21 of the 31 judicial emergencies (68 percent).
A few states in particular have borne the brunt of this obstruction. Thirty percent of the district judgeships in the Western District of Pennsylvania are vacant. Five federal judgeships in Alabama, all without a nominee, have sat vacant for six years combined. New Jersey has four new vacancies in 2015 (second only to New York which has 5 in 2015), and all are officially designated “judicial emergencies,” which means that there aren’t enough judges to handle current caseloads.
But the epicenter of this growing problem is 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 (9 of 67) of the Nation’s current federal judicial vacancies.
- It also has 23 percent of all the judicial vacancies for which no one even has been nominated. Nine of 39 such vacancies nationwide are in the Lone Star State. In contrast, New York has two and California has none.
- There is not a single nominee for the nine judicial vacancies in Texas.
- Right now, seven 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 four years, another has been vacant for over two years, and the two Fifth Circuit seats have been vacant for a combined four years.
- Seven vacancies are so severe that the Administrative Office of the United States Courts has declared them judicial emergencies, accounting for 23 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.
2014 marked some progress in Texas. On May 20, 2014, Texas saw its first federal judicial confirmation in two years when Judge Gregg Costa, who had been confirmed to the Southern District in 2012, was confirmed unanimously to the Fifth Circuit.
In addition, the president in 2014 made six nominations to Texas district court benches based on the recommendations of Republican Senators John Cornyn and Ted Cruz. Three of these nominees were confirmed before the year’s end, including Western District Judge Robert Pitman, a former U.S. Attorney in that district who became the first openly gay judge confirmed in a state with two Republican senators. The three nominees who were not confirmed—each nominated to a bench in the Southern District—were gradually confirmed over the first five months of 2015. SD TX nominee Al Bennett was confirmed to fill a judicial emergency on April 13, SD TX nominee George Hanks was confirmed on April 20, and Jose Olvera, Jr., nominated to a SD TX judicial emergency, was confirmed on May 21. Olvera needlessly waited on the Senate calendar for nearly three months before he was unanimously confirmed.
And yet, this progress has not been nearly enough to keep pace with new vacancies. Texas still leads the nation with nine judicial vacancies.
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, each 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 have 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 are either currently considering candidates or have already made recommendations to fill vacancies announced for later this year. In Minnesota, Senators Al Franken and Amy Klobuchar in February recommended state supreme court Justice Wilhelmina Wright for a district court seat that will become vacant in August 2015. President Obama formally nominated Justice Wright on April 15, 2015.
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 9 current judicial vacancies have been without a judge—and without a nominee—for a combined 14 years. There is no time to waste in filling each and every one of them.