Austin American-Statesman

Federal judge seats in Texas still empty

State accounts for nearly one-third of the nation’s ‘judicial emergencie­s.’

- By Maria Recio Special to the American-Statesman

WASHINGTON — 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 GOP 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 appoint-

ments that must be approved by the Senate — as well as for U.S. attorney positions — were due this month.

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.”

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 U.S. Circuit Court of Appeals — the most of any state — but none 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,” Houston attorney Rusty Hardin said 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, a University of Richmond law professor 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.

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Cornyn
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Cruz
 ?? JAY JANNER / AMERICAN-STATESMAN ?? Brooke Rollins (center), CEO of the Texas Public Policy Foundation, chairs a conversati­on with Texas’ two U.S. senators, Ted Cruz (left) and John Cornyn, at a policy orientatio­n event last month at the Austin Sheraton. Cruz and Cornyn are now taking applicatio­ns for vacant federal judgeships.
JAY JANNER / AMERICAN-STATESMAN Brooke Rollins (center), CEO of the Texas Public Policy Foundation, chairs a conversati­on with Texas’ two U.S. senators, Ted Cruz (left) and John Cornyn, at a policy orientatio­n event last month at the Austin Sheraton. Cruz and Cornyn are now taking applicatio­ns for vacant federal judgeships.

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