Texas, Where Are the Judges?

See also: Update: Texas, Where Are the Judges? by Anisha Singh, Abby Bar-Lev, and Phillip Martin

Endnotes, citations, and appendix are available in the PDF of this issue brief.

When President Barack Obama was first elected in November 2008, Texas had a complete slate of district court judges. However, that was the last time Texas’s federal courts operated at full capacity. Less than a month after the 2008 election, on November 30, 2008, U.S. District Court Judge W. Royal Furgeson Jr., who served on the Western District of Texas, took senior status—a form of semiretirement for federal judges. Now, some 2,000 days later, his old seat remains unfilled.

Because of the deference to home-state senators to recommend judicial nominees, the blame for this judicial vacancy crisis falls squarely on the shoulders of Texas’s two U.S. senators, Republicans John Cornyn and Ted Cruz, who have failed to act and address this serious problem.

Although Judge Furgeson’s seat has been vacant the longest, his empty spot on the federal bench is just the tip of the iceberg of what has become a judicial vacancy crisis in Texas. As of March 19, there are 10 current vacancies on federal courts that serve Texas, the most of any state in the nation. If nothing is done about this situation, in the next year, there will be at least 13 vacancies on these courts. The result of these current vacancies is a backlog of more than 12,000 cases and a denial of access to justice for Texans.

Perhaps Sens. Cornyn and Cruz do not get it, but federal courts matter, and having judgeships sitting vacant should have all Texans very concerned. Federal judges in Texas make decisions on Social Security benefits, immigration laws and border enforcement, and employment and civil liberties. They rule in criminal cases and are responsible for sentencing—a job many federal judges consider their most important and difficult duty.

“This problem of unnecessary, lengthy delay in the appointment process is having negative consequences far beyond the vacancies involved,” said Rep. Lloyd Doggett (D-TX) in April 2012, explaining that when Americans are denied equal access to one-third of our government, it creates uncertainty that prevents businesses from investing, hurting Texas’s economy. “Empty robes jeopardize our judicial system and filling them must be a higher priority.”

There’s no doubt Texas has an abundance of qualified, diverse candidates to serve on its district courts and on the 5th U.S. Circuit Court of Appeals. According to the American Bar Association, in 2013, there were 82,607 practicing attorneys in Texas. Yet Sens. Cornyn and Cruz have shunned their responsibility to provide names of candidates to the White House. It is past time that the people of Texas have a fully functioning federal judiciary.

Denying Texans access to justice

Texas currently has seven district court judicial vacancies. Four of these vacancies have been designated judicial emergencies by the Administrative Office of the U.S. Courts, meaning that because of the lack of judges, the courts cannot keep up with the demanding caseload. What’s more, four more district court seats will open in the next year. In addition, three vacancies on the 5th U.S. Circuit Court of Appeals are designated Texas seats, meaning they must be filled with the support of Texas’s senators. All three 5th Circuit vacancies are also judicial emergencies.

Federal courts make rulings that directly affect the lives of Americans. Our federal courts hear cases in which the United States is a party, cases involving violations of the Constitution or federal laws, and cases between citizens of different states. The federal courts also hear bankruptcy cases, patent cases, and cases involving maritime law.

Americans clearly understand the import and influence that decisions made by the U.S. Supreme Court can and do have on their lives. That is why it’s national front-page news when a Supreme Court justice steps down. But while Supreme Court decisions may make the headlines, the reality is that lower federal courts—those affected by Texas’s judicial vacancy crisis—decide hundreds of times more cases than the Supreme Court. Americans would never permit 2,000 days to go by without filling a vacancy on the U.S. Supreme Court, but that is what has happened on Texas’s federal district courts.

Because federal benches are sitting empty in the Lone Star State, Texans cannot have their cases heard in a timely manner. Meanwhile, Texas federal judges and their staffs are overworked. While the Supreme Court decides only around 80 cases per year, the 5th U.S. Circuit Court of Appeals—which is responsible for Texas appeals—heard 7,534 cases between March 2012 and March 2013. That averages out to around 443 cases per active judge. Of course, that is assuming that all 17 authorized seats were full. In the same time period, the Texas district courts heard 20,310 civil cases and 14,561 criminal cases, averaging 671 cases per judge—again, if all 52 authorized district court judgeships were full.

In all, if we add up the number of days Texas’s federal district and circuit court seats have been vacant, more than 19 years’ worth of cases could have been decided had judges been appointed to those seats. Instead, there is a backlog of more than 12,000 cases and some extremely overworked and overburdened court staffs.

Highest caseloads for the Western and Southern Districts

What makes vacancies on Texas’s federal courts especially concerning is that the courts near the U.S.-Mexico border have the highest caseloads in the nation. And most of Texas’s current and future vacancies are in the Western and Southern Districts that serve the southwest border of Texas.

The criminal felony docket for these courts is swollen with drug and immigration cases. In a 2010 year-end report, U.S. Supreme Court Justice John Roberts said the failure to nominate and confirm judges in a timely manner “has created acute difficulties in some judicial districts,” particularly highlighting the courts on the southwest border. Last year, the Judicial Conference of the United States, chaired by Justice Roberts, asked Congress to create new judgeships in Texas to deal with the growing caseload.

According to the Bureau of Justice Statistics, the five federal judicial districts along the southwest border, which include the Western and Southern Districts of Texas that serve El Paso, San Antonio, and Laredo, “accounted for 56 percent of all federal suspects arrested and booked in the U.S. and 90 percent of all immigration arrests in 2010. These districts also handled the largest number of felony cases per judge in the federal criminal court system.”

In January 2011, Judge Fred Biery, the chief judge of the U.S. District Court for the Western District of Texas, told the Houston Chronicle that the “caseload is enormous.” In March 2013, he told the San Antonio Express-News, “It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle.”

When Judge Furgeson was still on the Western District’s bench, he made a plea to Congress to add more judges to his court. “Additional judges are desperately needed. Courts throughout the country have all the work they can handle, but federal judges in the border courts are being worked beyond exhaustion. Congress has to step in and give them relief, the sooner the better.”

The Senate responded in 2011, with Sen. Dianne Feinstein (D-CA) introducing legislation—the Emergency Judicial Relief Act of 2011—that would add four judicial seats in California, three seats in Texas, and one seat in Arizona. The aim was to help states in judicial crisis along the U.S.-Mexico border. Senators from Texas and Arizona supported Feinstein’s legislation.

But the bill died, and no new judgeships were created. More recently, Feinstein joined with Sens. Chris Coons (D-DE) and Patrick Leahy (D-VT) to sponsor the Federal Judgeship Act of 2013 to create additional judgeships across the country, including seats on Texas district courts. The bill is pending. Meanwhile, Judge Furgeson’s seat on the Western District, along with six others, remains vacant on Texas’s district courts. Because no permanent judge has filled Furgeson’s seat in almost six years, Judge David Alan Ezra of Hawaii has to be flown in to hear cases on the docket for the Western District. Judge Ezra flies in periodically and picks up 20 percent of the civil cases in San Antonio and the cases of about 700 criminal defendants per year in Del Rio.

To add to the concern, U.S. District Judge Robert Junell, who serves the Western District, announced that he would take senior status in February 2015, giving one year of advance notice to fill his seat. However, Judge Junell has said that he is unsure if a year’s notice is enough time to name his successor given the current political climate that surrounds Texas judicial vacancies.

The process of appointing federal district court judges

Under the U.S. Constitution, the president appoints federal judges “by and with the advice and consent of the Senate.”

Federal court appointments are for life, which means that it is up to each judge to decide when to step down. When judges do decide to step down, they often give advance notice of up to one year before they leave a federal district court or circuit court of appeals.

Because judicial nominees cannot make it through the Senate confirmation process without the support of their home-state senators, when there is a vacancy or notice of a pending vacancy on a federal district court, the White House consults with the senators who represent the state in which the particular court vacancy is located. Home-state senators may recommend judicial candidates to the White House in a number of ways: by conducting exhaustive searches through the state bar for candidates; by creating selection committees, often made up of leading attorneys in the state; or by selecting candidates based on the recommendations of these committees or other considerations.

The selection process can be slowed if home-state senators fail to recommend a candidate to the president in a timely manner or if they delay in engaging with the White House in its consultation. After a candidate is officially nominated, the Senate determines how quickly, if at all, the president’s nominee moves through the confirmation process.

The entire process—from vacancy to confirmation—can take months or even years depending on how quickly the Senate acts. Throughout the process, senators can slow or block progress by failing to initiate or participate in a candidate recommendation process. Senators, for example, may refuse to return blue slips, letters printed on light blue paper that are used by the Senate Judiciary Committee to ask home-state senators to approve committee consideration of nominees who would serve in their states. In recent years, blue-slip approval from a home-state senator has been a de facto requirement to move forward with a candidate. Senators may also obstruct by delaying the Senate Judiciary Committee vote or by postponing a full vote in the Senate. The White House may also choose to make arrangements about the appointment process with a home state’s house delegation.

On March 25, 2009, the White House issued a statement recognizing that, “The Texas Democratic members of the House of Representatives have, at the request of the White House, engaged in a process that involves interviewing potential candidates” to fill vacancies for Texas’s judicial seats, as well as for U.S. attorney and U.S. marshall. The statement went on to say that, “The White House supports the Texas Democratic delegation’s established process for reviewing and submitting candidates.”

While the release ensured that Texas’s U.S. senators would be “accorded a full opportunity to share their views about each candidate the President proposes to nominate,” it also clearly stated that President Obama would not nominate any federal judge “unless that person has the confirmed support of the Texas Democratic delegation.”

A political problem in Texas

When it comes to the judicial vacancy crisis in Texas, the problem begins and ends with Republican Sens. Cornyn and Cruz, who have not cooperated with the White House in finding candidates from Texas to send to the president for nomination.

In May 2013, the two Texas senators appeared to be ready to put politics aside and re-established the Federal Judicial Evaluation Committee to find qualified candidates to fill the Texas judicial vacancies. Sen. Cornyn even said in a press statement announcing the committee, “Texans deserve able, fair and independent prosecutors and judges, and I’m proud to join Senator Cruz in reconstituting this bipartisan committee to ensure individuals who are of the highest caliber are confirmed expeditiously and can begin serving Texas as soon as possible.”

Sen. Cruz concurred:

It is crucial that we ensure Texans have the best, most qualified judges and prosecutors defending their rights in court. I am glad to work alongside Senator Cornyn in reestablishing this committee, and thank the attorneys willing to serve this effort and ensure the timely filling of court vacancies.

In July 2013, Sens. Cornyn and Cruz finally announced they were seeking applications to fill six federal judicial vacancies in their state. More than seven months later, however, there are still no nominees named to fill current or future Texas district court vacancies. When asked what the delay was in providing names to the White House, Sen. Cornyn said they were “working on that.”

What’s more, Sen. Cornyn has tried to shift the blame to the president. “The president’s got to nominate somebody before the Senate can act on it,” he said at a Senate Judiciary Committee hearing in May 2013. “The Constitution provides the president makes a nomination, and we provide advice and consent. So that’s a condition precedent to our ability to act. … The fact is because of our proximity to the border … the caseload per judge is sky-high compared to the rest of the country. So this is not some game we’re playing here.”

But Sen. Cornyn knows better. Because of Senate tradition, the reality is that district and circuit court nominees do not make it to a confirmation vote without the support of home-state senators. Therefore, the White House generally defers to the recommendations of these home-state senators. In that spirit of cooperation, Sen. Cornyn and former Texas Sen. Kay Bailey Hutchison (R) worked together to help fill the Texas bench while President George W. Bush was in office. As of March 19 in the sixth year of Bush’s presidency, Sen. Cornyn, his predecessor Sen. Phil Gramm (R-TX), and Sen. Hutchison helped confirm 18 district court judges in Texas by seeking qualified candidates to fill the vacant seats using a commission process. Since President Obama has been in office, just six seats have been filled—all during Sen. Hutchison’s tenure. No judicial vacancies in Texas have been filled since Sen. Cruz took office in January 2013.

Unprecedented obstruction

Sens. Cornyn and Cruz, who both sit on the Senate Judiciary Committee, certainly have an understanding of why the federal courts are important. Sen. Cornyn is a former Texas Supreme Court justice, and Sen. Cruz was Texas’s solicitor general, the state’s chief appellate lawyer.

But instead of working with the president to find the most qualified judges, they have been responsible for unprecedented obstruction, not just in filling Texas’s federal court seats but also in preventing the confirmation of federal judges nationally. Cloture is the only procedure by which the Senate can vote to end debate and overcome a filibuster. Throughout its long history, the U.S. Senate has filibustered a total of 147 individual nominees. More than half of those filibusters have taken place during the Obama administration. In U.S. history, there have been a total of 168 cloture motions filed or reconsidered on nominations, and 82 of these have been made since 2009.

Some senators, including Sens. Cruz and Cornyn, insisted on filibustering the president’s nominees to the nation’s second-most powerful national court, the U.S. Court of Appeals for the D.C. Circuit. Sen. Cornyn wrote in an opinion piece for FoxNews.com that, “Republicans should remain united in blocking Senate Majority Leader Harry Reid’s attempt to pack the D.C. Circuit Court of Appeals, which is America’s second-most-influential judicial body.”

Obstruction by some senators led Senate Majority Leader Harry Reid (D-NV) to reform the Senate rules to end abuse of the filibuster to block the confirmation of judicial nominees except in the case of Supreme Court appointments, lowering the threshold to end debate from 60 votes to 51 votes.

But Senate rules reform means little for Texas Sens. Cornyn and Cruz, who have refused to cooperate with the White House from the start of the nominations process by failing to simply recommend a nominee to fill Texas’s judicial vacancies.

Conservative Texas courts

Texas’s federal bench is highly conservative, and Sens. Cornyn and Cruz do not want to alter that political leaning. The impact of a conservative court can best be seen when it comes to cases that affect women and reproductive rights, particularly cases moving through the 5th Circuit. Take, for example, the following case that was recently decided in federal courts that serve Texas.

On July 18, 2013, Texas Gov. Rick Perry (R) signed into law a sweeping bill that would close most of the women’s health clinics that provide abortions in Texas and prevent doctors from providing abortion care. According to the American Civil Liberties Union, “The bill imposes onerous and medically unnecessary structural requirements on abortion clinics and bans abortion after 20 weeks of pregnancy—the point in pregnancy when a woman might find out something has gone seriously wrong.”

Civil liberties groups challenged the law in federal courts. On October 28, the district court permanently blocked the law, but on October 31, the 5th Circuit and the U.S. Supreme Court allowed the law to take effect while the case works its way through the courts. The merits of the case were before the same three-judge panel of Republican appointees—Judges Edith Jones, Jennifer Elrod, and Catharina Hayes—which upheld the restrictive law as constitutional on March 27, 2014.

The 5th Circuit is stacked with Republican-appointed judges, with 10 judges who were appointed by Republican presidents and only four judges who were appointed by Democratic presidents. Moreover, only five of the 17 judges on the 5th Circuit are women.

All of Texas’s district courts are also right leaning. The Eastern District has five Republican appointees and one Democratic appointee made by President Obama. The Northern District has eight Republican appointees and three Democratic appointees. The Southern District, which is racially the most diverse of Texas’s federal courts with six Hispanic judges and eight women, has nine Republican appointees and seven Democratic appointees. And the Western District has nine Republican appointees and three Democratic appointees. Each of these courts has at least one current vacancy.

Conclusion

Texans deserve to have fair and diverse judges on their federal bench. In the past, Sen. Cornyn and former Sen. Hutchison worked well together to ensure that then-President Bush’s nominees moved through the nominations process smoothly. The same has not been true since President Obama took office, especially since Sen. Cruz replaced Sen. Hutchison in January 2013.

In order to solve the judicial vacancy problem in Texas, Sens. Cornyn and Cruz must act quickly to recommend qualified and diverse judicial candidates to the White House and make the process for finding judicial candidates in Texas more transparent. As part of that transparency, there should be some indication of how long it will take for the Texas Senators’ Federal Judicial Evaluation Committee to provide names to the White House and how far along the committee is in this process.

If Texas’s senators continue to shun their responsibility, the White House should consider other options—including names and nominees put forth by the Texas Democratic delegation or names received directly from the Texas bar associations—to better identify diverse, qualified judges to fill Texas’s many judicial vacancies.

Regardless of the process, Texans deserve access to justice, not a backlog of cases and empty courtrooms. Sens. Cornyn and Cruz must put their constituents above political gamesmanship and end their unwavering obstruction of the federal judicial nomination process.

Sandhya Bathija is the Campaign Manager for Legal Progress at the Center for American Progress. Joshua Field is the Deputy Director of Legal Progress. Phillip Martin is the deputy director of Progress Texas, based in Austin, Texas.

Legal Progress intern Jake Paiva also contributed to this report.