On Monday, U.S. District Judge Hilda Tagle assumes senior status after 14 years of dedicated service. That means the judiciary has 78 openings in 856 judgeships, the Fifth Circuit has two in 17 and the Texas District Courts has five in 41.
These vacancies - almost ten percent system-wide and twelve percent in the Fifth Circuit and the Texas Districts - undercut justice. Therefore, President Barack Obama must promptly nominate, and senators expeditiously approve, judges to fill the empty seats.
Obama has aggressively sought advice of Republicans and Democrats where vacancies arose before nominations. Obama submitted nominees of even 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 Gregg Costa.
Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, has quickly set hearings and votes, sending nominees to the floor where many languished. In early August, the Senate recessed without considering 22 excellent nominees the panel reported because the GOP would not vote.
Republicans must cooperate more. The critical obstacle is the floor.
Republican Leader Mitch McConnell (Ky.) has infrequently agreed to votes. The unanimous consent procedure, which permits one senator to stop floor ballots, has slowed many nominees. Most troubling has been GOP refusal to consider consensus talented nominees, inaction that violates chamber tradition. When senators have voted, they smoothly confirmed most nominees.
The 179 appellate judgeships, 16 of which are open, are essential. Obama has recommended seven fine nominees. He should keep cooperating with Leahy and Democratic Leader Harry Reid (Nev.), who sets floor debates and votes, and their Republican counterparts to facilitate appointment while nominating fine prospects for the eight other vacancies. Two are Texas Fifth Circuit openings created when Judge Fortunato Benavides took senior status during February and Judge Emilio Garza did so in August.
Texas GOP Senators Kay Bailey Hutchison and John Cornyn seemingly chose to propose no candidates for these vacancies because they hoped the Republican presidential nominee would win. Hutchison intimated she would leave nominations for GOP Senator-elect Ted Cruz. Their apparent decision against suggesting candidates ignores the generous White House proffer to carefully evaluate candidates senators propose.
This inactivity frustrates the Constitution’s selection process - which states the President nominates and with Senate advice and consent appoints judges. After Obama nominates, the Texas lawmakers could halt Senate consideration by retaining blue slips.
Recommending no prospects basically conflicts with the claims by Hutchison and Cornyn that the Constitution demanded up or down votes for all nominees in President George W. Bush's administration. Furthermore, Inaction deprives Texas of Fifth Circuit representation by two more active judges. Federal law mandates that every Fifth Circuit state have one active jurist, so only custom requires the President to nominate a Texan for either vacancy. Two circuit openings unfairly burden the court’s remaining judges while delaying appeals.
Obama must rapidly seek proposals from Cornyn and Cruz for these vacancies. They may reinstate the Hutchinson-Cornyn Judicial Evaluation Commission, which recommended many fine district nominees who easily won approval. If Cornyn and Cruz do not tap prospects, Obama might choose excellent consensus nominees whom senators swiftly consider.
The 677 district judgeships, 62 of which are open, are crucial. Obama has nominated 29 competent persons and must quickly nominate candidates for the other 33 vacancies. Texas has two Eastern and Southern District openings and one Western District vacancy. Another Southern District judge will go senior in March. The openings are critical because Texas District filings have surpassed the national average, while Western District caseloads have grown 25 percent since 2007. In May, Hutchinson and Cornyn revived their commission and asked candidates to apply but tendered Obama no names. Therefore, he must seek proposals from Cornyn and Cruz, so Obama may select five capable nominees. The chamber in turn must quickly consider nominees.
Because the 78 vacancies erode justice, President Obama must promptly nominate, and senators rapidly confirm, many exceptional judges.
ABOUT THE WRITER
Carl Tobias is the Williams Chair in Law at the 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.