During Barack Obama’s second term as president, Texas Sens. Ted Cruz and John Cornyn allowed vacancies on Texas’ federal appeals court to fester, but now that President Donald Trump is in charge they might move quickly to morph the 5th U.S. Circuit Court of Appeals into a breeding ground for conservative-leaning decisions.
“The one thing Trump said he wanted Ted Cruz’s advice on was judges,” said Kelly Shackleford of the First Liberty Institute, a conservative legal defense organization that talked with Trump about judicial appointments. “You’ve got Cornyn, who was a (Texas state) Supreme Court justice, so you’ve got people who are really known for their expertise.”
The 5th U.S. Circuit Court of Appeals, which comprises all of Texas, Louisiana and Mississippi, is generally considered one of the more conservative federal courts in the country, but it struck down Texas’ controversial voter-ID law last July.
That might soon change with Trump in office.
“My biggest fear from this particular regime is that they’ll do everything they can in the future to put up further barriers,” said Democratic Rep. Marc Veasey of Fort Worth, the plaintiff in the voter ID case.
“I’m worried about in-person voter registration. I’m worried about reduced days for early voting,” Veasey said. “There are lots of different things that can really, really wreak havoc on the black and Hispanic community, and there seems to be no empathy from this regime at all or any previous Texas regimes that have been in office and held the governorship, and . . . we need to be vigilant and we need to fight.”
The fight will have to take place in the public arena instead of the Senate chamber: A simple majority is all that’s required to confirm appeals court justices, meaning Trump, Cruz and Cornyn will get their way if other Republicans are on board.
Cruz was giddy with excitement after Trump announced Neil Gorsuch as his Supreme Court pick on Tuesday evening, calling it “the most important moment in the first two weeks of this presidency.”
“This election was a referendum on this seat,” Cruz said to Fox News on Wednesday. “The American people got to make a choice: Do you want a principled constitutionalist in the mold of Antonin Scalia, which Donald Trump promised, or do you want a liberal judicial activist, which is what Hillary promised?”
Obama managed to appoint only three judges to the 5th Circuit Court of Appeals during his eight years in office, and one post on the bench has been open since 2012.
That’s the same number that Trump can appoint right now, provided that Cruz and Cornyn are on board.
Shackleford mentioned Texas Supreme Court Justice and tweeter extraordinaire Don Willett along with federal Judge Reid O’Connor as potential appointees who would likely appeal to Cruz, Trump and Cornyn. Willett was floated as a potential U.S. Supreme Court nominee during Trump’s election campaign.
“I think it’ll be normal,” Shackleford said of the confirmation process for 5th Circuit justices. “It takes a little while to get going – the attorney general’s not even in place – but what you’ll find is it’ll start slow over the first two or three months, and then you’ll see a lot of nominations confirmed and moving pretty quickly.”
A total of 116 federal judge positions are vacant, and 35 of them have been vacant since 2014.
Ed Espinoza of Progress Texas, a liberal advocacy organization, said the 5th Circuit was used during Obama’s administration as a test laboratory for conservative-leaning laws at the regional level before they were pushed nationally.
“So many laws that are passed in Texas are done so because . . . they want to see what will fly,” Espinoza said of Republicans.
Another law that surfaced in Texas is a challenge to the Department of Labor’s overtime threshold, a move that would make millions of Americans eligible for overtime pay. Trump’s pick for labor secretary, Andrew Puzder, opposes the change that was sponsored by the Obama administration.
“The frustrating thing about Obama appointees is they were middle-of-the-road appointees,” said Rick Levy of the Texas AFL-CIO, which is advocating for the overtime rule’s expansion. “They were people President Obama, Cruz and Cornyn could all agree on. They were mainstream judges in qualification and temperament. I think that Ted Cruz is obviously a gifted legal scholar, but I don’t have any confidence for him approving people to the court.”
Espinosa maintained that if Cruz and Cornyn try to push activist conservative justices to the appeals court, they will be met with bipartisan resistance from moderate Republicans and Democrats.
“I know Trump doesn’t think that he needs Democrats, yet he’s going to need Democrats,” Espinosa said. “You’ve got senators like Lindsey Graham and John McCain right there and that takes it to a 50-50 split.”
The White House did not respond to a request for comment on its plans for filling the 5th Circuit’s vacancies.