- By Maria Recio Special to the American-Statesman
Vacancies for the federal bench typically present a chance for U.S. senators to push preferred candidates, but as President Donald Trump prepares to name two Texas nominees for a U.S. appellate court, he’s hearing from an unlikely person: Gov. Greg Abbott.
The Texas governor, a former state Supreme Court justice, is playing an outsized role, alongside U.S. Sens. Ted Cruz and John Cornyn of Texas, in the process of filling two vacancies on the powerful and influential 5th Circuit Court of Appeals.
There are also 11 federal district judge vacancies in Texas. Trump last Monday nominated 10 judges in other states as part of what is expected to be a wave of nominations nationwide.
“I’m a little bit surprised at the involvement of Abbott,” said Hector De Leon, an Austin attorney who served on the committee making judicial recommendations to Texas senators for more than 20 years until 2013. He said he never saw other Texas governors getting involved with federal judicial selections.
“But this is a president like we’ve never had. This is a confirmation process like we’ve never had,” De Leon said. “This is all political. This is not a pristine process.”
The 5th Circuit is considered one of the nation’s most conservative appellate courts and has made major rulings in recent years on issues from environmental and regulatory rules in the oil and gas industry to abortion to voting rights.
Typically, the president makes the nominations from recommendations made by the senators, who rely on a selection committee they appoint that consists of prominent attorneys who evaluate candidates. The process can become more drawn out when the senators and the president are from different parties. The nominees need confirmation by the Senate for the lifetime appointments.
“It appears that Abbott is trying to inject himself into a process that is normally reserved for the senators,” said Jason Smith, a Fort Worth attorney with a federal practice who has been monitoring the selection process. “Lawyers are wondering who is going to have the influence in the nominations.”
Abbott’s office did not respond to requests for comment.
All three lawmakers are connected at the highest levels of state legal circles: Cornyn was a Texas Supreme Court justice and attorney general; Cruz was Texas solicitor general, appointed by Abbott; the governor was also attorney general, succeeding Cornyn, and served on the Texas Supreme Court with him. Cornyn and Cruz are members of the Senate Judiciary Committee, which votes on the nominees.
According to attorneys watching the process closely, the leading candidates for the 5th Circuit openings are:
• U.S. District Judge Reed O’Connor: Cornyn’s top candidate for the circuit court, according to legal sources, is considered a shoo-in. O’Connor, who is based in Fort Worth, is a former aide to the senior senator and raised his profile last year when he blocked a federal directive that required public schools to let transgender students use bathrooms consistent with their gender identity. Cornyn’s seniority and position as majority whip mean the White House is likely to defer to him.
• James Ho: A Cruz favorite who succeeded him as solicitor general, Ho is a Dallas attorney with Gibson Dunn and Crutcher who clerked with Supreme Court Justice Clarence Thomas. He also worked for Cornyn. Active in the Federalist Society, a group that advocates for a conservative judiciary, Ho led a legal effort during Cruz’s presidential campaign to fight challenges to the Canadian-born Cruz’s eligibility to run for president.
• Andy Oldham: Abbott’s deputy general counsel, Oldham is the governor’s leading choice. A former deputy solicitor general, Oldham has an impressive resume, including degrees from Cambridge University and Harvard Law School and a clerkship with Supreme Court Justice Samuel Alito.
• Texas Supreme Court Justice Don Willett: the candidate with arguably the highest name recognition, Willett made Trump’s short list of 20 Supreme Court justice preferences during the campaign. While known for his Twitter activity — the Texas House named him “Tweeter Laureate” — Willett has been involved in high-profile cases and has been on the Texas court since 2005. He also worked for Abbott before joining the court.
There are two other Texas appellate court judges proposed by the committee, Michael Massengale and Brett Busby, but they do not appear to be part of the ongoing horse-trading.
Abbott has promoted Oldham to Cornyn and Cruz and contacted the White House on his behalf, according to an Oldham advocate who is close to Abbott and spoke on condition of anonymity because the process is supposed to be private. After Oldham’s interview with the White House counsel’s office, “they gave him a standing ovation,” the source said.
With O’Connor seemingly a sure bet, the decision for the second slot might come down to other political issues: Cruz is a pivotal player on the GOP replacement for the Affordable Care Act. George Shipley, an Austin attorney and Democratic political consultant, thinks that tips the judgeship nomination to Texas’ junior senator.
“They’ll give that one to Cruz because they need his vote,” he said.