Circuit Judge Emilio Garza recently assumed senior status after two decades of service. This means the bench has 77 vacancies in 856 appellate and district judgeships, while the Fifth Circuit experiences two in 17 and the Texas District Courts have four in 41. These openings, which are some ten percent nationally and for the Texas Districts and 12 percent in the Fifth Circuit, erode justice's delivery.
President Barack Obama must swiftly nominate, and the Senate promptly confirm, judges, so the vacancies will be filled.
President Obama has robustly sought advice from Republicans and Democrats where openings materialize before nominations. He has proposed nominees of balanced temperament, who are smart, ethical, diligent, independent and diverse vis-á-vis ethnicity, gender and ideology. Examples are Fifth Circuit Judge James Graves and Texas District Judge Marina Garcia Marmolejo.
Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, has expeditiously conducted hearings and votes, sending nominees to the floor where numbers languish for months. Indeed, on August 3, the Senate recessed without considering 22 well qualified nominees the panel approved because the GOP refused to vote.
Republicans must cooperate better.
The principal bottleneck is the floor. Senator Mitch McConnell (R-Ky.), the Minority Leader, has infrequently agreed on ballots. Most troubling has been GOP unwillingness to move uncontroversial excellent nominees, inaction that contravenes Senate traditions. When the chamber has eventually voted, it smoothly confirmed many nominees, like Stephanie Rose, who secured 89-1 approval last Monday.
The 179 appellate judgeships, 14 of which are empty, are critical. Obama has suggested 41 talented nominees. He should continue cooperating with Leahy and Senator Harry Reid (D-Nev.), the Majority Leader, who arranges floor votes, and their Republican counterparts to facilitate confirmation while nominating exceptional candidates for the eight openings lacking nominees. One is Judge Garza’s unfilled post.
There is another Texas Fifth Circuit seat, which has remained unoccupied since February when Judge Fortunato Benavides assumed senior status. Texas GOP Senators Kay Bailey Hutchison and John Cornyn apparently decided to propose no possibilities for this vacancy because they believe the Republican presidential nominee will be elected. Hutchison indicated she wants her November replacement to suggest judicial nominations.
The senators’ submission of no candidates for Texas Fifth Circuit openings ignores the generous White House offer to seriously consider prospects they forward. Inaction of Hutchison and Cornyn frustrates the Constitution’s appointments process, which states the President nominates and with Senate confirmation appoints judges, because after Obama nominates the Texas senators can halt Senate consideration by not returning blue slips.
Declining to recommend candidates essentially contradicts the senators’ contentions that the Constitution required up or down votes for all of President George W. Bush’s nominees. Hutchison and Cornyn must also keep in mind that inactivity withholds from Texas Fifth Circuit representation by two more active judges, federal law mandates that every Fifth Circuit state have one active judge, so only tradition demands that the President nominate a Texan for either vacancy, and two Fifth Circuit openings unfairly burden the court’s other judges while fostering delay.
The White House must rapidly consult Hutchison and Cornyn about the two Fifth Circuit vacancies and solicit their suggestions. The senators might revitalize their Judicial Evaluation Commission, which proposed many exceptional district nominees whom the Senate easily confirmed. If Hutchison and Cornyn fail to send candidates, Obama might recommend fine consensus nominees whom the chamber then swiftly processes.
The 677 district judgeships, 63 of which are open, are crucial. Obama has nominated 156 very competent individuals and must promptly suggest candidates for the 40 vacancies without nominees. The four Texas openings encompass two in the Eastern District and one each in the Southern and Western Districts. Two Southern District judges will also take senior status in the next six months. The empty seats are critical because Texas District filings have surpassed the national average, while Western District caseloads have grown by 25 percent since 2007. Hutchison and Cornyn revived their commission in May and sought candidate applications. However, the Texas senators have not provided the White House names. Accordingly, it must consult Hutchison and Cornyn and seek proposals, so Obama may quickly submit four strong nominees. The Senate must in turn expeditiously process the nominees.
The vacancies in 77 judgeships erode justice. Therefore, President Obama must swiftly nominate, and senators must rapidly approve, numerous fine judges before the presidential election additionally delays the process.
ABOUT THE WRITER
Carl Tobias is the Williams Chair in Law, University of Richmond.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.