Editor's Note: This is the second installment of a multi-part series drawing a link between the GOP Senate’s obstruction of President Obama’s judicial nominees and how that is empowering conservative judges in lower courts to block Obama’s policies nationwide. If ever there were a time to examine this link, it’s now, just days before voters have a chance to determine who controls the U.S. Senate.
As several GOP senators such as Texas's Ted Cruz and Arizona's John McCain have begun to muse about blocking future nominees of a President Hillary Clinton indefinitely, we are just now beginning to see the global consequences of the systemic stonewalling of judicial appointments Republicans have engaged in.
As we learned last week, President Obama's policies on immigration, transgender bathroom use and contracting rules are effectively being vetoed by three separate federal judges in Texas, all of whom have issued nationwide injunctions on the policies in the last two years. What that means is that federal judges in the 5th Circuit, arguably the most conservative in the country, are dictating federal policy nationwide. That's true even in lawsuits like the Texas v. U.S. immigration case, where even though 26 states joined the challenge to Obama's executive action on deportation relief, another 24 states chose not to, presumably because they supported the administration's position.
The nationwide blockades are what Nan Aron, president of the left-leaning Alliance for Justice, calls an "unprecedented power grab" and it's no accident. Texas currently has far more federal court vacancies than any other state in the nation—13 total, two of which are on the 5th Circuit Court of Appeals. The official directory of the U.S. federal courts actually rates all 13 federal vacancies in Texas as a "judicial emergency" based on a combination of factors, including case load, the amount of time it might take to resolve those cases, and how long the judgeship has gone unfilled. For instance, any federal district vacancy where weighted filings exceed a 600 rating or where the vacancy has existed more than 18 months is in contention to be a judicial emergency. In Texas, for example, one of those judgeships in the Southern District has gone unfilled since the summer of 2011, while three others in the Eastern District have weighted filings of 1261, more than double than what it takes to be deemed an emergency. Florida comes second in "judicial emergencies" with five openings that qualify, including one on the 11th Circuit Court of Appeals. That’s not a rosy picture by any means, but it’s still less than half of the Lone Star State’s total.
"Texas is unique given the large number of vacancies," Aron says. "It's also unique in the sense that you've got a very aggressive attorney general's office which is engaging in forum shopping, making sure that the right judges will hear the cases and make decisions favorable to that attorney general's office."
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Indeed, earlier this year indicted Texas Attorney General Ken Paxton went out of his way—traveling over 300 miles from Austin—to file a challenge joined by about a dozen states to the Obama administration's guidance on transgender bathroom use in schools. As Ian Millhiser pointed out, the AG's office filed that case, also called Texas v. U.S., in the Wichita Falls Division of the Northern District of Texas, where all of one federal judge exists according to the court website: Judge Reed O'Connor. It just so happens that O'Connor had targeted same-sex couples for discrimination a year previous, shortly before the Supreme Court issued its historic marriage equality ruling.
Something similar happened when then-Attorney General Greg Abbott filed his immigration challenge in late 2014 fully 350 miles away from Austin in the Brownsville Division of the Southern District of Texas. At the time, only one judge appears to have been in full rotation: Judge Andrew Hanen. In fact, back in December of 2014, the Southern District had five vacancies listed (compared to two listed today), including one opening created by Judge Hilda G. Tagle, who is presently listed as a "Senior Judge"—or semi-retired—suggesting that she takes some cases but how many isn’t exactly clear. The only other judge currently in that division, Rolando Olvera, wasn't confirmed until May of 2015, several months after Hanen was already assigned to the immigration case. So by filing the lawsuit in Brownsville, Hanen was almost assured to get the case. And as you may have guessed, Hanen has a history of anti-immigrant rulings.
So the problem in Texas is acute—down to almost surgically being able to pinpoint one particular judge in certain instances. But it's also the global nature of the vacancies that has intensified the issue on the ground. To date, in fact, the Alliance for Justice tells me President Obama has only gotten 22 of his judicial nominees confirmed in the final two years of his presidency, compared to 68 for George W. Bush, 73 for Bill Clinton, and 122 for George H. W. Bush.
"The fact that it's a nationwide problem is really what's exacerbating the Texas situation," says Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF), which is serving as counsel to the intervenors in the Texas v. U.S immigration case. Saenz explains that if other districts were in better shape, some judges could be temporarily moved to help pick up some of the case load in Texas.
"It would be easier to transfer a judge from New Mexico or California if those districts weren't also heavily affected by the failure of the Senate to confirm judges that have been nominated," he notes.
Saenz sees what’s happening in Texas as a system-wide problem where all the potential solutions have been choked off by the lack of Senate movement at the top. If there were more federal judges in Texas, the problem wouldn't exist. If there were more judges in the lower courts more generally, they could fill in some of the gaps in Texas. And if the Senate had confirmed a ninth justice to the Supreme Court, it could serve as a check on judges who overstep their authority. Instead, when Hanen's order blocking Obama's immigration policy nationwide reached the Supreme Court, the justices deadlocked, 4-4, both failing to clear up whether Obama's policy was constitutional and leaving Hanen's order in place by default.
"The Supreme Court should be the entity that reins in judges at the district court, and even at the circuit court of appeals, who are issuing orders that are really beyond their legal authority," Saenz says.
Instead, that ruling has given other judges license to follow Hanen's lead. In fact, in the transgender bathroom case and the contractor case, Associated Builders and Contractors of Southeast Texas v. Rung, both judges cited the 4-4 split which let Hanen's order stand as justification for their own nationwide injunctions.
Of course, none of these local issues would even exist if it weren't for stagnation at the top of the pipeline, where the GOP Senate majority has refused to move nominees expeditiously. And the failure to confirm federal judges in the Texas districts, in particular, has been aided by Sens. Ted Cruz and John Cornyn, who have uniquely foundered in their responsibilities to issue formal recommendations to President Obama.
Tomorrow, I'll use my column (which posts at 11 AM PT) to further examine the forces that have contributed to this judicial emergency and how it can be corrected in a potential Clinton presidency. And for starters, allowing home state senators too much control over the nomination process cannot continue, especially if Democrats regain control of the Senate.
The previous piece can be read here.