Last fall, when Donald Trump was flagging in the presidential polls and conventional Washington wisdom had Hillary Clinton headed to the White House, U.S. Sens. Ted Cruz and John Cornyn were pushing five judges to fill vacancies in Texas.
The Texas senators recommended the judges to the White House and supported their nominations at a September hearing — unusual for its timing, two months before a presidential election — set to fill positions that, along with eight other Texas judgeships, have been vacant so long they had been dubbed judicial emergencies.
But the Senate Judiciary Committee never held a vote on the nominations. Nearly six months later, the positions are still vacant.
Cruz and Cornyn announced in January that they would take applications for the judicial openings and for vacant U.S. attorney positions through the bipartisan Federal Judicial Evaluation Committee of prominent state lawyers they created to review candidates. Applications for the lifetime appointments that must be approved by the Senate — as well as for U.S. attorney positions — are due Sunday.
Asked about last year’s five judicial selections, Cornyn said, “It’s a new administration. It’s not as if these people will not have the opportunity to compete.” He said some may reapply and blamed the Obama administration for not making filling the positions a priority.
Matt Angle, director of the Lone Star Project, a Democratic political action committee based in Washington, said the push for judges last fall happened because “they were in a cold sweat panic that Hillary Clinton was going to win. They were trying to get the best appointments they could before Hillary Clinton became president.”
Obama nominated the five candidates for the judgeships in March.
U.S. Rep. Lloyd Doggett, D-Austin, also a former Texas Supreme Court judge, was part of a Democratic U.S. House effort to influence judge selection when Barack Obama, a Democrat, was elected president, since Texas’ senators were Republican.
Doggett told the Statesman, “These are five individuals recommended to President Obama by our senators. In order to be considered now, our senators would have to obtain the renomination of each by President Trump.”
“The judicial emergency in Texas has existed for years,” Doggett said. “Extended delaying tactics by our senators were effective in leaving multiple vacancies. Unfortunately, the Obama administration abandoned the judicial selection process it had agreed to with our Texas House Democratic delegation and never made judicial appointments a priority. The price already paid for this failure to diversify our Texas federal judiciary will only grow as lifetime Trump appointees take the bench.”
There are 11 district judge vacancies in Texas and two vacant Texas slots at the New Orleans-based 5th Circuit Court of Appeals — the most of any state. None are in Austin. They make up nearly one-third of the 44 “judicial emergencies” nationwide, as determined by the Judicial Conference of the U.S., the federal court system’s policymaking arm.
“I think he’ll have a tremendous impact on the judiciary in Texas,” said Houston attorney Rusty Hardin of Trump. “The fact that we have these nominations sit around so long is really terrible. Civil cases pay a tremendous price.”
“I think it’s a crisis and the epicenter is Texas,” said Carl Tobias, law professor at the University of Richmond who has studied the judicial vacancy issue. “The places you see it are in civil cases. It takes longer for cases and you have to wait longer for a trial date. ‘Justice delayed - justice denied,’ that’s the real nub.” Tobias said that the average annual caseload per judge nationally is 400 cases: in Texas, it’s 1,200 cases.
Hardin, whose practice is both civil and criminal, says he votes in the GOP primary but considers himself an independent. The lack of judges hurts the system, he said, and he would like the judicial selection process to be nonpartisan.
“I’d like to get back to judges being selected based on their qualifications,” he said.