Merrick Garland is getting all the attention. President Obama's nominee to fill the Supreme Court seat vacated with the death of Justice Antonin Scalia seems just as unlikely to receive a confirmation vote as he did the day he was nominated, March 16. Both of Texas' senators, John Cornyn and Ted Cruz, have vowed that no Supreme Court nominee will get a hearing before the November election. Closer to home, though, a different judicial nomination crisis exists, one that's causing a huge backlog in Texas' federal courts and that Cornyn has only recently decided to help do anything about.
Texas has 11 vacant seats on its various federal benches, the most in any state. Nine of those vacancies are classified as emergencies out of 32 emergencies nationwide by the U.S. Department of Justice. As of Thursday morning, the total length of time those seats have gone unfilled amounts to 20 years. Caseloads in the state are so high that, according to the Judicial Conference of the United States, even if each of the 11 vacancies was filled the state would still need an additional nine judges on Texas' district and circuit courts in order to keep workloads at a manageable level.
The Texas vacancies exist because of the way that Cornyn and Cruz have handled judicial nominations in their state. Traditionally, senators begin the vetting process for district court seats when a judge announces his or her intention to retire. Cornyn and Cruz have not done that. Instead, they've begun looking at candidates after retiring judges are already gone, leading to Obama not having a shortlist for many of the nominations he might make. When U.S. District Judge Leonard Davis announced he was quitting Texas' Eastern District in 2014, he warned of the consequences Cornyn's and Cruz's delays were having on his court.
“With my retirement in May 2015 and Judge Richard Schell’s in March 2015, the Eastern District could have four of eight judgeships vacant by this time next year. This would make it very difficult for the remaining four Eastern District judges to do the work of eight and continue to fulfill their constitutional responsibilities to the citizens of East Texas,” he wrote.
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Earlier this week, Cornyn signaled that, although he may be as intransigent as ever toward Garland, he is working with the Obama administration to try to clear part of the Texas backlog, working to confirm judges for the five spots on Texas courts for which Obama has named a nominee.
"This disagreement over the Supreme Court is not going to stop my commitment to work across the aisle to help Texas and Texans. And to that end, we've been working with the White House on five judicial nominations," Cornyn said, according to Texas Lawyer.
Each of the five judges Cornyn is working with the White House on were vetted by the Federal Judicial Evaluation Committee, a project set up by Cornyn and Cruz to screen potential Obama nominees to Texas courts. Even so, Karen Scholer, the Texas nominee who's waited the shortest amount of time so far, has been stuck in limbo for over a year. Progress Texas Deputy Director Phillip Martin praised Cornyn for announcing a first step toward curing the Texas backlog.
“Twenty years of empty court seats is inexcusable. However, admitting there’s a problem is the first step to recovery. To that end, I appreciate Senator John Cornyn recognizing the problem he and Senator Cruz created," Martin said. "We and Texans everywhere look forward to swift hearings and confirmations for these five nominees, and urge Senator Cornyn and the White House to come up with names for the remaining vacancies as soon as possible.”