Senate on track to OK U.S. judges, ease logjam

WASHINGTON — The U.S. Senate is poised to consider three new federal judges for Texas, a potential breakthrough in a political logjam that has contributed to some of the most severe judicial bench shortages in the nation.

The delayed journey of the three judges, all headed for the Southern District of Texas that encompasses Houston, represents what some attorneys call the “tip of the iceberg” in a protracted nomination battle in Congress.

There are currently nine federal judicial vacancies in Texas, the most of any state — seven of them in district courts and two on the 5th U.S. Circuit Court of Appeals, which reviews cases from Texas.

But in a sign of a potential thaw, a Senate panel led by Texas Republican John Cornyn held a longsought hearing Wednesday on the judges, setting aside Sen. Ted Cruz’s past call to hold off on executive and judicial nominations in response to President Barack Obama’s unilateral actions on immigration.

None of the Texas judges — Alfred Bennett, George Hanks Jr., and Jose Olvera Jr. — is considered controversial. A diverse group — Bennett and Hanks are black; Olvera is Latino — they have won kudos from Cornyn and Cruz, both members of the Judiciary Committee.

Cruz praised the three judges in Wednesday’s hearing and congratulated them for surviving a “long and grueling process” and coming through, he said, with “flying colors.”

Senate aides expect all three to win confirmation in the coming weeks. But Cruz has remained vague about supporting their confirmations in light of the ongoing funding battle over the president’s executive actions on immigration.

The House has voted to strip the funding from a Department of Homeland Security spending bill. But the fate of that legislation, which faces a White House veto threat, remains uncertain in the Senate.

Cruz spokesman Phil Novak told the Chronicle that Cruz “stands behind what he said with respect to the President’s executive order on immigration, but is optimistic with the House’s passage of its (Homeland Security) funding bill that we have taken a significant step toward stopping the president’s illegal executive amnesty.” Cornyn, Cruz blamed

Ultimately, Novak noted, the nominations are “a constitutional power given to Senate leadership and it is up to leadership to exer- cise that power.”

The balancing act for Cruz is only the latest flash point in a contentious battle between the White House and Senate Republicans over executive and judicial nominations, particularly for Texas, a state with two high-profile Republican senators.

Democrats argue that Texas had a full complement of federal district court judges when Obama was elected president in 2008. They blame Cornyn and Cruz for contributing to the current spate of va- cancies by moving slowly to advance judicial recommendations under Obama.

The sparks flew at the outset of Wednesday’s hearing when Vermont Democrat Patrick Leahy, the ranking Democrat on the Judiciary Committee, issued a statement noting that it was a “repeat” hearing of “nominees whom we could have considered last year if their homestate Republican senators had agreed.”

Republicans note that the three Texas judges were first nominated in September when Democrats still controlled the Senate. All three languished until Congress adjourned in December.

In fact, the Senate approved four other federal judges in Texas last year, reducing what would otherwise be a bigger shortage. But the vacancies keep coming, with three more federal judges retiring or going into semi-retirement in the coming months.

Leahy noted that Bennett and Olvera are slated to fill “emergency vacancies,” meaning judgeships in districts with heavy caseloads and long waits. Olvera has been nominated for a vacancy that’s been open since the middle of 2011; Bennett’s since early 2013. Hanks is slated to fill a seven-month-old vacancy.

Even without political interference, the process of identifying, nominating and confirming federal judges for lifetime appointments can take months or even years. Studies of the federal bench in Texas have found that the vacancies have left a backlog of more than 12,000 cases, raising the alarm not just among trial lawyers and legal activists but business groups as well.

“There’s a severe problem in Texas,” said Glenn Sugameli, a senior attorney in the Defenders of Wildlife’s Judging the Environment project. “For years, Texas has been unique in having the highest number of vacancies across the country.” Civil cases hurt most

Also among those who have been pressing to meet the needs of the state’s federal courts is a group called the Texas General Counsel Coalition, made up of top lawyers for companies such as Dr Pepper Snapple Group, iHeartMedia, and Frito-Lay North America.

Their registered lobbyist: Matthew Johnson, Cornyn’s former chief counsel. Both Cornyn, a former Texas Supreme Court justice, and Cruz, who was Texas’ solicitor general, have backed legislation to add federal judgeships in Texas. They say they’ve also been working with the administration since May 2013, to fill what were then six vacancies.

But the jousting dates back to 2009, when the new Obama administration announced that it wanted to give Texas Democrats in the U.S. House delegation a voice in recommending federal judges, a role that has traditionally been reserved for senators.

That mandate forced the issue of finding “consensus” candidates, no small task in an increasingly polarized Congress. Complicating the equation was a new Democratic president from Illinois, replacing President George W. Bush, a Republican from Texas more familiar with the state bar.

To jumpstart the process in 2013, Cornyn and Cruz set up a bipartisan review panel of leading Texas lawyers called the Federal Judicial Evaluation Committee.

While some observers praise the panel’s rigorous reviews, they note it has lengthened the process. But since then, the Senate has confirmed 10 judicial vacancies in Texas, all vetted by the panel.

“I’m concerned about the length of many judicial vacancies in Texas and will continue to work with my colleagues on both sides of the aisle in the Senate, in the Texas congressional delegation, and also with the White House to move this process along,” Cornyn told the Chronicle. “Through our bipartisan Federal Judicial Evaluation Committee, Senator Cruz and I have recommended several excellent candidates for these vacancies whom the president has nominated, and we will continue pushing for their swift confirmation.”

A recent Brennan Center for Justice report found that the stakes are particularly high for Texas, a big border state with a large immigration caseload and long distances that judges sometimes have to cover to hear cases.

But legal scholars also say the vacancies impair the state’s business climate, slowing down cases and driving up litigation costs.

“Mostly, it affects the civil docket because criminal cases take priority,” said Congress watcher Carl Tobias of the University of Richmond Law School. “You can’t get a trial date, or if you do, it’s postponed, so it slows down the docket even more.” kevin.diaz@chron.com twitter.com/DiazChron