It is no exaggeration to say that the federal court system in Texas is in dire straits. Anyone doubting that need look no further than the state's two senators, John Cornyn and Ted Cruz.
Even with judicial nominees they themselves recommended, Cornyn and Cruz don't lift a finger to help to prevent delays in committee or on the floor. Just ask Jose Rolando Olvera, who was denied a floor vote until nearly three months after his approval by a unanimous Judiciary Committee in February. That's particularly ironic, since at Olvera's hearing, Cornyn had said that he and Cruz would push for his "swift confirmation."
But even worse than this snail's pace post-nomination is the senators' foot-dragging pre-nomination, as they delay making recommendations to fill vacancies in the state's federal courts.
Even if there were no vacancies in Texas, the state would need more judges: The Judicial Conference of the United States has asked Congress to add eight new judgeships in the Lone Star State.
But Texas, in fact, does have judicial vacancies – nine of them, seven of which have been designated as judicial emergencies (meaning the current caseload is too much for the judges to handle). Not one has a nominee, because Cornyn and Cruz have shown little interest in recommending nominees to the White House in anything approaching a timely manner.
They have put together a Federal Judicial Evaluation Committee to vet potential nominees and make recommendations to the senators. But they wait absurdly long after learning about a vacancy before tasking the Evaluation Committee to address it, guaranteeing that the vacancy rate will remain needlessly high.
For instance, in April, the senators announced that the Evaluation Committee was accepting applications for vacancies in the Eastern District (Plano) and the Western District (Midland), both of which are judicial emergencies. This was two months after the Midland vacancy opened, but Cornyn and Cruz's delay was far longer than "just" two months. Midland Judge Robert Junell had actually announced his plans to go into semi-retirement more than a year in advance, in January of 2014. Waiting 15 months after learning of a planned vacancy before even beginning the process to fill it is hardly a sign of deep commitment to the federal courts in Texas.
As for the Eastern District seat in Plano, it had become vacant a month earlier when Judge Richard Schell took senior status. But Judge Schell's plans had been formally announced in March of 2014, a year in advance, and they were known even earlier than that, in January of 2014. Nevertheless, the senators chose to wait more than a year to activate their Evaluation Committee.
That Plano vacancy isn't the only one in the Eastern District. Almost a full year ago, in June of 2014, Judge Leonard Davis announced that he would be taking senior status in May of this year. That left more than enough time for a replacement to be identified by the senators, nominated by the White House, and confirmed by the Senate. After all, that's the reason departing judges tend to make their plans known so long in advance. However, Senators Cornyn and Cruz still have not publicly asked their Evaluation Committee to start work on this vacancy. As a result, the vacancy opened two weeks ago without a nominee. To no one's surprise – but to the detriment of people in Texas – it was immediately designated a judicial emergency.
The April directive to the Evaluations Committee was actually the second one this year. In January, they directed it to start vetting applicants for vacancies in the Southern District (Corpus Christi) and the Northern District (Lubbock). The Lubbock vacancy had just opened, but it had been announced nearly six months in advance. The Corpus Christi seat has been vacant since Judge Janis Jack took senior status in 2011.
And last July, the senators tasked their committee to begin work on vacancies in the Southern District (Galveston) and the Northern District (Dallas). The Dallas vacancy had been announced in April 2013, more than a year before. The Galveston vacancy had opened just a few weeks earlier when Judge Gregg Costa had been elevated to the Fifth Circuit, but he had been nominated with the senators' full support in December of 2013, so this, too, was a vacancy that was known well in advance.
Yet even though these long-delayed Evaluation Committee processes have finally begun, they have still resulted in a total of zero nominees so far.
Then there are the two longstanding judicial emergencies at the Fifth Circuit. Traditionally, home state senators play a much smaller role in filling circuit court seats than they do with district court seats. Nevertheless, the White House has long been consulting extensively with Cornyn and Cruz, who have apparently stated their opposition even to moderate district judges originally recommended for those positions by Republicans.
So it is not a surprise that Texas has nine vacancies without nominees, seven of them judicial emergencies. John Cornyn and Ted Cruz seem to be doing everything they can to maximize the number of vacancies available for (what they hope will be) a Republican president to fill starting in 2017, heedless of the harm this does to their constituents.
Senator Cornyn recently blamed the White House for the vacancies he and Cruz have fostered:
We can't nominate the judges. The president has to nominate the judges.
Given the senators' deliberate and successful sabotage of the federal court system in Texas, the President would be more than justified in going forward with nominations to these vacancies. Then Senators Cornyn and Cruz should press for fair hearings before the Judiciary Committee on which they both serve.