Judicial vacancies still a problem for Texas federal courts

Posted Thursday, Mar. 14, 2013  comments  Print Reprints

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U.S. District Judge Kenneth Hoyt in Houston recently took senior status after 25 years of dedicated service. His action leaves the federal bench with 85 vacancies among 856 judgeships.

The 5th U.S. Circuit Court of Appeals, which covers Texas, has two of 17 seats awaiting appointees. And there are six vacancies on Texas' 41 district courts. President Barack Obama must promptly nominate, and senators rapidly consider, judges to fill the vacancies.

Obama has consulted both Republicans and Democrats before nominating judges. He's suggested nominees who are of even temperament, smart, ethical, diligent, independent and diverse. Examples are 5th Circuit Judge James Graves from Mississippi and District Court Judge Diana Saldaña of Laredo.

Sen. Patrick Leahy,D-Vt., the Judiciary Committee chairman, has promptly scheduled hearings and votes, sending nominees to the floor, where many have languished. Republicans need to cooperate more. The critical bottleneck is the floor. GOP Leader Mitch McConnell of Kentucky has infrequently agreed to votes.

Particularly troubling has been Republican reluctance to vote on strong consensus nominees, which breaks with Senate traditions. When senators ultimately have voted, they've overwhelmingly approved most nominees, such as District Judge David Guaderrama of El Paso, who won confirmation by voice vote in April 2012, though not until seven months after he was nominated.

The 179 circuit judgeships, 16 of which are empty, are critical. Obama has recommended six excellent nominees. He must continue working closely with Leahy and Democratic Majority Leader Harry Reid of Nevada, who arranges floor debates and votes, but also with their Republican counterparts to facilitate confirmation. Obama also needs to nominate outstanding prospects for the other 10 vacancies. Two of those are 5th Circuit openings created when Texas-based appellate Judges Fortunato Benavides and Emilio Garza assumed senior status in 2012.

It seemed that Texas Republican Sens. Kay Bailey Hutchison and John Cornyn didn't propose candidates for those empty posts because they anticipated that Mitt Romney would be the next president. That left Hutchison's recommendations to new GOP Sen. Ted Cruz.

But this kind of inactivity frustrates the Constitution's appointment process, whereby the chief executive nominates and, with Senate advice and consent, appoints judges. Failing to submit candidates basically conflicted with the contentions by Hutchison and Cornyn that the Constitution demanded "yes" or "no" votes for all judicial nominees of President George W. Bush. Inaction also deprives Texas of 5th Circuit representation by two more active jurists, while increasing the work for the other court members and delaying appeals. (Senior status judges hear a reduced caseload.)

The White House must quickly seek recommendations from Cornyn, Cruz and Texas Democratic House members for these unfilled positions. The senators may wish to reconstitute the Hutchison-Cornyn Judicial Evaluation Commission, which suggested numerous fine district nominees who easily won confirmation.

But Texas district court dockets now have surpassed the national average. If Cornyn and Cruz do not propose individuals, Obama could submit well-qualified consensus nominees whom senators can swiftly process.

Carl Tobias is the Williams Chair in Law at the University of Richmond.

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