Voting Rights Hang in the Balance – 32 Days and Counting

On June 25, 2013, the US Supreme Court dealt a devastating blow to the Voting Rights Act (VRA) in its Shelby County v. Holder decision. Congress has had more than three years since then to restore the VRA’s critical protections aimed at fighting racial discrimination in voting. Indeed, legislation known as the Voting Rights Advancement Act was introduced to develop a new coverage formula and make additional updates to this landmark law. Not only has GOP leadership failed to bring it to a vote, but people like House Judiciary Committee Chairman Bob Goodlatte have outright denied the need to restore the VRA, despite overwhelming evidence to the contrary.

Now there are just 32 days left before the first presidential election in fifty years in which ballots will be cast without full VRA protections.

According to the Brennan Center, 6 of the 14 states with new restrictive voting laws in effect for the first time in a presidential election were previously covered by Section 5 of the VRA, meaning that in the past they had to get prior federal approval for any voting changes.

Nearly Half of New Restrictive Voting Laws in Former Sec 5 States

Even when we have won victories for voting rights, there have been attempts to resurrect voter suppression. Talking Points Memo spoke to voting rights advocates about this disturbing trend:

“You take a step back and it’s really appalling,” said Dale Ho, the director of the ACLU's Voting Rights Project who has been involved in many of the legal challenges to state voting restrictions.

“I mean the Department of Justice and other groups, we have all won the cases ... you would have thought we would have been finished with this whole thing, when, up until Election Day, we have to stay on these people," Ho told TPM.

. . . “There’s two things going on: One is that we have seen court-ordered softening [of voter ID laws] in places like Wisconsin and Texas, and then either foot-dragging or incompetence in carrying it out, which has led to follow-up lawsuits or threats of lawsuits,” said Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog. “The other thing that is going on is new shenanigans in response to court rulings. And that’s North Carolina.”

. . . “The trend that you’re definitely seeing is that although you may win in a court, so much of what actually matters to voters depends on implementation of a court victory,” said Jennifer Clark, counsel for the Brennan Center's Democracy Program. “So getting a ruling that blocks or softens a restrictive voting law is really only the first step in making sure that people have the right to vote.”

It's painfully clear that voters are vulnerable this November. But that doesn't mean that anyone should shy away from the ballot box. It just means that we need to be prepared. Our affiliate PFAW Foundation is part of the Election Protection coalition that is preparing voters with what they need to know to vote and what they need to do if they have a question or something goes wrong.

Failing to defend the right to vote is simply not an option.


Voting Rights – We Can Win

This Saturday marks the 51st anniversary of the signing of the Voting Rights Act. Though we have a long way to go to restore this landmark law and ensure that every voter can cast a ballot that counts, it's important to recognize the progress being made.

Yesterday a ruling in North Dakota provided relief for voters facing restrictive voter ID this November. From the Native American Rights Fund:

[A] federal district court enjoined North Dakota’s strict voter ID law and ruled that voters unable to obtain the necessary identification may vote in the upcoming election by completing a declaration or affidavit. The court agreed with the seven Native American voters that the new law disproportionately burdens Native Americans and denies qualified voters the right to vote.

Last week was huge for voting rights victories, with voters in five states receiving favorable rulings.

Kansas: A Shawnee County district judge ruled that thousands of questioned (thanks to Kris Kobach) voter registrations will count in the August 2 primary. As reported by the Kansas City Star:

A Shawnee County district judge ruled Friday that the votes of 17,500 people whose registrations had been questioned are to be tallied in Tuesday’s primary.

Judge Larry Hendricks issued a temporary order, meaning the votes will be counted Tuesday. The American Civil Liberties Union filed the lawsuit against Secretary of State Kobach on behalf of Kansas voters who were told that they could vote in federal elections but that their votes in state and local elections would not be counted.

Louisiana: A federal district court held the state accountable for its neglect of the National Voter Registration Act (NVRA), which expands voter registration access to motor vehicle offices and other agencies. Niyati Shah provided this Project Vote analysis:

In this exhaustive opinion, the court basically held that mere lip service to the public assistance provisions of the National Voter Registration Act (NVRA) is not an option . . . In Louisiana, however, the state had apparently decided that our vulnerable citizens weren’t all that important, and gave all sorts of excuses for neglecting Section 7 of the NVRA. But, in a resounding victory for the right to franchise, a federal district court rejected the state’s arguments.

North Carolina: The state's monster voter suppression law that covers a number of harmful policies was struck down by the Fourth Circuit Court of Appeals. Paul Gordon provided this PFAW Foundation analysis:

A three-judge panel of the Fourth Circuit Court of Appeals today reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds.

Significantly, the unanimous circuit court concluded that the law does more than "just" have a discriminatory impact, in violation of a section of the Voting Rights Act (VRA).  The court also found that the law’s purpose was to discriminate, putting it in violation of the United States Constitution. One piece of evidence: state officials moved to enact the law within days of the Shelby County case removing any preclearance requirements under Section 5 of the VRA.

Virginia: Though here it was a state court pushing back on voting rights progress, Governor Terry McAuliffe stood strong in defense of voting rights restoration for formerly incarcerated persons. After the Virginia Supreme Court struck down Governor McAuliffe’s executive orders restoring the voting rights of over 200,000 formerly incarcerated persons, McAuliffe said "he would forgo his blanket declaration — and, instead, individually sign about 206,000 restoration orders for ex-felons, including 13,000 who had registered after his April order."

Wisconsin: A federal district court struck several provisions of the state's voter suppression package. Rick Hasen provided this Election Law Blog analysis:

This is a pretty sweeping opinion, which rejects many of the state’s arguments for its restrictive voting rules as [pretextual], and really aimed at giving Republicans advantage in elections. The judge was particularly skeptical of measures which made it harder to vote in Milwaukee, with its large population of minority voters, and to a lesser extent, Madison, a liberal stronghold in the state. But this is a careful opinion which parses the evidence and does not accept all of the claims.

Two weeks ago it was Texas and, again, Wisconsin.

Texas: The Fifth Circuit Court of Appeals affirmed previous rulings against voter ID. As reported by the Texas Tribune:

Texas' voter identification law violates the U.S. law prohibiting racial discrimination in elections, a federal appeals court ruled Wednesday.

The U.S. 5th Circuit Court of Appeals affirmed previous rulings that the 2011 voter ID law — which stipulates the types of photo identification election officials can and cannot accept at the polls — does not comply with the Voting Rights Act.

Wisconsin: A federal district court provided relief for voters facing restrictive voter ID this November. From the American Civil Liberties Union:

Wisconsin’s voter ID law has been a mistake from day one. This ruling is a strong rebuke of the state’s efforts to limit access to the ballot box. It means that a failsafe will be in place in November for voters who have had difficulty obtaining ID.

There is a lot of work left to do in the voting rights arena. Not even these victories signal the end of the road for voting rights advocates. But they are important signs of progress.



The Cruel Irony Of The Anti-Choice Movement’s TRAP Strategy

The Supreme Court heard arguments today in Whole Woman’s Health v. Hellerstedt, which could be the most influential abortion rights case in decades. Whole Woman’s Health, which addresses a Texas law that aims to close abortion clinics by saddling them with expensive and unnecessary regulations, puts to the test the anti-choice movement’s long-term strategy of passing targeted regulation of abortion providers (TRAP) laws meant to squeeze abortion providers out of existence.

As early as 1990, attorney Walter Dellinger, who went on to serve in the Clinton administration, was warning that the emerging strategy of setting up obstacles to abortion access would push women to obtain abortions later in their pregnancies, a more expensive and less safe procedure. These supposed “compromise” measures, he noted, were at the same time sometimes coupled with calls to cut off legal abortion during the second trimester of pregnancy. Dellinger wrote in The American Prospect:

To enact in the United States laws that simply prohibit abortions after twelve or eighteen weeks would constitute a strange and cruel response to the issue of late abortions. In this country, legislative deadlines for abortion would co-exist with access regulations designed to prevent women from being able to meet the deadline. No state truly concerned about either the increased maternal health risks or the moral implications of late abortions should consider the coercive step of prohibiting second trimester abortions while simultaneously pursuing policies that cause abortion to be delayed. … Bans on funding for abortions, shutting off access to public hospitals, parental consent/ judicial bypass laws, and testing requirements all fall into this category. Legislators who are troubled in principle by late abortions should support instead measures ensuring that every woman who wants to terminate a pregnancy can do so as early and as safely as possible.

Fast forward to late last year, when a study showed that exactly that had happened after Texas implemented its restrictive new law:

A new report released by the Texas Policy Evaluation Project — a research group based at the University of Texas at Austin that’s been tracking the state’s reproductive health policy over the past four years — finds that recent clinic shutdowns have greatly limited access to timely abortions statewide. In some cases, women had to wait nearly a month to be seen. In others, clinics had to turn women away, since they had no available appointment slots open.

As wait time to get an abortion increases, the estimated proportion of abortions performed in the second trimester increases. These later surgical abortions, although safe, are associated with a higher risk of complications and are significantly more costly to women than an earlier medical abortion. And even staunch abortion opponents are more opposed to late-term abortions compared to earlier procedures, citing the scientifically disputed theory that fetuses can feel pain after 20 weeks gestation.

At today’s arguments in Whole Women’s health, Justice Anthony Kennedy hinted at this issue, according to the Wall Street Journal’s early reports:

Justice Kennedy ends the string of questions from the women justices.

He notes that drug-induced abortions are up nationwide, but down in Texas, where the number of surgical abortions is up since the state enacted its law. He wondered whether such an impact was “medically wise.”

Justice Ruth Bader Ginsburg similarly called out Texas’ solicitor general for undermining his own claim that the state’s regulations were meant to protect women’s health:

Justice Ginsburg asks: How many women will be located more than 100 miles from a clinic? Mr. Keller makes reference to a 25% number, but says that number is high because it doesn’t take into account some women close to clinics in New Mexico.

That’s odd, Justice Ginsburg says. She wonders why Texas would consider those New Mexico clinics an option, given that they wouldn’t meet the standards set forth in the state law. If your argument is right, New Mexico is “not a way out” for Texas, the justice tells Mr. Keller.

Even as the anti-choice movement is pushing restrictive regulations that, as the Texas study showed, drive women to seek abortions later in their pregnancy, it is championing measures at the state and federal level that would cut off legal abortion at 20 weeks of pregnancy, partway through the second trimester.

Of course, the anti-choice movement is focusing on these two strategies because they believe they can pass muster in the courts and in public opinion in a way that the ultimate goal — an outright ban on abortion — would not. But what is left is not a regime that protects women’s health, as proponents of Texas’ law claim, but one that makes it increasingly difficult, if not impossible, for women to obtain an abortion, which has been their ultimate goal all along.



Fifth Circuit Ruling on Texas Voter ID Shows Importance of Preclearance

A unanimous three-judge panel of the Fifth Circuit today ruled that Texas’s restrictive voter ID law adopted in 2011’s SB 14 violates Section 2 of the Voting Rights Act because it has a racially discriminatory effect.  This is a great victory for voting rights.

The Texas voter ID law had previously been struck down by a district court.  Judge Nelva Gonzales Ramos had concluded not only that the law violated Section 2, but that Texas had adopted it with the intent to discriminate, in violation of the Constitution.  The Fifth Circuit rejected her analysis of how to discern discriminatory intent, concluding that she relied on factors that should not have been considered, such as long-ago intentional discrimination and assertions by the law’s opponents.  The Fifth Circuit remanded the case for her to reanalyze that aspect of her decision using a narrower set of evidence.  If she reaches the same conclusion, the voter ID part of the law would be struck down completely as unconstitutional.  But even if she finds no intentional discrimination, Judge Ramos can still fashion a remedy for the Section 2 violation, although it could very well fall short of completely eliminating the voter ID requirement section of SB 14.

You might wonder why a bill passed in 2011 is at this state of litigation more than four years after it was adopted.  The answer lies in the Supreme Court’s notorious Shelby County decision from 2013 that gutted the VRA’s critically important preclearance provision, which had covered Texas.

In 2012, a three-judge district court refused to preclear the law, finding that it would have had a harmful effect on racial minorities.  That should have been the end of the story, with Texas unable to put the law into effect.  But Shelby County removed Texas from preclearance requirements, allowing it to implement the law despite its previous failure at preclearance.  That meant that its victims had to go to court to challenge the law, bearing the burdens of litigation and of proving their case, even while people across the state suffered from the law’s discriminatory effects, including during the 2014 elections.  In fact, more than half a million registered voters in Texas lack the proper ID required by the law.

Now, two separate federal courts have ruled that SB 14 violates Section 2 of the VRA, and the case still has further to go: Even if the state doesn’t appeal today’s ruling, the remand back to the district court means that more litigation is in store, and portions of the law may still end up going into effect, albeit with a less discriminatory impact.

Far more efficient and just would have been to allow the preclearance provision of the VRA to work as Congress intended.  Texas officials’ eagerness to implement this discriminatory law as soon as they were able to shows just how important the preclearance provision is in protecting the right to vote.

Tomorrow will be the fiftieth anniversary of the Voting Rights Act.  Today’s ruling is a reminder of the law’s importance.  It is also a great example of why Congress should pass the Voting Rights Advancement Act, which would not only restore the vital protections of preclearance consistent with the Supreme Court’s directive that any formula should be based on modern circumstances, but also make other critical improvements to the landmark law.


Fifth Circuit Upholds Extreme Abortion Restrictions in Texas

On Tuesday the Fifth Circuit federal appeals court upheld most of Texas’ stringent anti-abortion law, which could leave as few as seven clinics open in the nation’s second largest state. The U.S. Supreme Court temporarily blocked these restrictions in October; however, the Fifth Circuit’s ruling allows the law to stand, ushering in a likely wave of clinic closings for the Lone Star State.

The Associated Press explains how the law works:

 The decision by the 5th U.S. Circuit Court of Appeals allows Texas to enforce Republican-backed restrictions that require abortion clinics to meet hospital-level operating standards, a checklist that includes rules on minimum room sizes, staffing levels and air ventilation systems.

This decision represents an endorsement of a long series of right-wing initiatives to chip away at the rights protected by Roe v. Wade. By pushing unnecessary laws targeting abortion facilities, the Right can mandate costly renovations that create a needless economic strain on clinics. For example, the Texas law requires abortion clinics to abide by the same standards as hospital surgical centers, despite the fact that many clinics solely provide medical abortions, which do not involve surgery. The Supreme Court has said that states may not pass laws with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. But the court yesterday turned a blind eye to the obvious in order to further the Right’s anti-choice agenda.

A panel of three judges, all appointed by George W. Bush, delivered the decision, which will force facilities across the state to shut their doors and leave women hundreds of miles away from a licensed abortion provider. Verdicts from the ultra-conservative Fifth Circuit bench, like the decision in October letting Texas enforce strict voter ID laws, highlight the importance of who sits on our nation’s courts.  Although Fifth Circuit has two longstanding vacancies, Republican obstruction has prevented the filling of these seats. Tuesday’s decision further exemplifies the critical need for fair and just courts, particularly as right-wing legislators continue their relentless attack on the rights established by Roe.


Cornyn and Cruz Are Devastating Texas Courts

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.


Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

The Senate is heading toward a weeklong Memorial Day recess with no sign that Majority Leader McConnell will schedule a vote to confirm a long-waiting judicial nominee from Texas. If Jose Rolando Olvera is not confirmed to the Southern District this week, it will be only the latest failure for Texas Senators John Cornyn and Ted Cruz in looking after their state's federal courts.

The state has ten judicial vacancies, eight of which are judicial emergencies, and only one of which even has a nominee, despite extensive White House efforts to reach out to the senators.

But the focus this week is on Olvera. He was among four district court nominees – three Texans and one Utahan – approved unanimously by the Judiciary Committee way back in February. Three months later, McConnell has allowed the Senate to vote on only two of them, the only judges confirmed so far in the 114th Congress. It is hard to imagine a legitimate reason to delay a vote for so long and deliberately keep a judicial vacancy open longer than necessary.

President Obama nominated Olvera after he was recommended by Cornyn and Cruz, and they praised Olvera and his fellow Texas nominees at their confirmation hearing in January. Yet on February 12, when committee chairman Chuck Grassley delayed a previously scheduled vote by two weeks without offering a reason, not a squeak of protest could be heard from either Cornyn or Cruz, both of whom are members of the Committee.

After they finally cleared the committee, they faced more obstruction, this time from McConnell, who didn't schedule votes on any of these unopposed consensus district court nominees until mid-April. The Utah nominee is finally get a vote later today. But with the Senate planning to leave town until June, Olvera's nomination is still languishing.

In the meantime, people and businesses in Texas suffer from the lack of enough judges. The vacancy Olvera would fill has been formally designated a judicial emergency by the Administrative Office of U.S. Courts, meaning there aren't enough judges to handle the caseload.

In fact, the situation in the Southern District is so bad that the Judicial Conference of the United States (headed by Chief Justice John Roberts) has asked Congress to create two additional judgeships there. In other words, even with every vacancy filled and senior (semi-retired) judges carrying a significant caseload, Texans seeking to protect their legal rights would still be denied their right to a timely day in court.

Surely if the senators had wanted this vacancy filled in a timely manner, it would have been filled already. After all, John Cornyn isn't just some back-bencher. As the Senate Majority Whip, he occupies a powerful leadership position.

The Senate should have confirmed Olvera months ago. There is certainly no excuse for the Senate to leave town for Memorial Day recess without confirming Olvera to the bench and allowing him to take up his judicial responsibilities as soon as possible.

Cornyn and Cruz cannot get a timely confirmation vote in a Senate controlled by their own party for an uncontested district court nominee who they themselves recommended to the White House. Or perhaps they can but choose not to. Either way, that's pitiful.


McConnell Should Let Senate Confirm Judges

Majority Leader Mitch McConnell has yet to schedule a confirmation vote on the four district court nominees who cleared the Judiciary Committee without opposition nearly two weeks ago: Jill Parrish for the District of Utah, and Alfred Bennett, George Hanks, and Jose Rolando Olvera for the Southern District of Texas.

Texas in particular is in desperate need of more federal judges. The Lone Star State has a shocking 11 judicial seats currently vacant (with a twelfth one opening this spring). In fact, the eleventh vacancy opened just today. This opening came as no surprise: Judge Richard Schell of the Eastern District announced back in January of 2014 that he would be taking senior status. Texas Sens. Cornyn and Cruz could have recommended an acceptable nominee to the White House in time for that person to have been fully vetted, nominated, and confirmed last year. Unfortunately, that did not happen; no nomination has been made yet.

Of those eleven vacancies, seven have been designated judicial emergencies. That's nearly one third of all the judicial emergencies nationwide. Confirming the three Texas nominees who have been waiting for Senator McConnell to schedule a floor vote would help alleviate this problem.

All three would serve in the Southern District of Texas, which will still have an additional two vacancies remaining even after these nominees are confirmed. McConnell's delay is adding unnecessarily to the strain on the area's federal court system.

Just how bad is that strain? The Judicial Conference of the United States has asked Congress to create an additional two judgeships in the Southern District of Texas. In other words, even if all three pending nominees were confirmed today, and the other two vacancies were magically filled tomorrow (even though they don't have nominees), the crushing caseload burden on the Southern District is so bad that at least another two judges would be needed to ensure that the people of Texas have access to a fair and efficient federal court system.

A confirmation vote on the Texas (and Utah) nominees is long overdue.


Republican Inaction as Judicial Emergencies Jump

Yesterday we blogged about how the Senate Judiciary Committee and Chairman Chuck Grassley ought to move judicial nominations next week when they return from recess. We noted that the number of vacancies has increased from 39 at the end of last year's lame duck session to 46 today, with fourteen of those officially designated as judicial emergencies.

Well, we've had developments since yesterday's post. First, next week's committee schedule is up, and no hearings have been announced for judicial nominees.

And secondly, the Administrative Office of U.S. Courts this morning designated an additional five vacancies as judicial emergencies, so the total has jumped from 14 to 19.

These new emergencies include one in the Northern District of Texas, which has been vacant since July of 2013 and which had been announced in advance in April of that year. Yet it was not until last July that Sens. Cornyn and Cruz announced a process to identify Northern District recommendations to the White House. Perhaps if they had not waited more than a year after being notified of this vacancy, it would be filled today. Instead, there is no nominee yet, and a vacancy that should not still exist is instead a judicial emergency.

Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.

Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

So as of today, the number of judicial emergencies has jumped from 12 at the beginning of the year to 19 today. Senate Republicans can and should do much more to get that number moving back down.


Ted Cruz Vows to Damage Texas Courts in Response to Obama's Immigration Action

In response to President Obama's upcoming action on immigration, Texas Sen. Ted Cruz has vowed to retaliate by sabotaging the federal court system in his own state.

No, that's not how he phrased it, but that would be the impact of his vow. Yesterday in Politico, Cruz wrote how he thinks the Senate should respond to the president's policy decisions on immigration enforcement:

If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.

While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.

As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.

But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.

And that's what is it: a crisis. As we wrote earlier this month in a Huffington Post piece entitled Lame Duck Opportunity and Obligation: Confirm Judges:

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.

To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.