When I first noticed a ruling last month from a federal judge in Texas placing a nationwide injunction on the Obama administration's new federal contracting rules, I couldn’t help but think, “What the heck is going on in Texas?” It was the third such ruling in less than two years where a federal judge from the Lone Star State had issued an order blocking federal policy nationwide.
Was this the way democracy was supposed to work? We elect a president; she or he utilizes their executive authority to set federal policy on immigration issues, transgender bathroom use, and contracting rules; and then a federal district judge in arguably the most conservative circuit in the country effectively vetoes those policies nationwide? Something was wrong. Sure, it's Texas. But this went beyond one ruling. It was an extraordinary pattern that suggested the system isn’t working.
With a little bit of reporting, I found that the Texas rulings emanated from a systemic, pervasive, and deliberate GOP effort to choke off the pipeline of Obama’s judicial nominees to the court system. It’s a problem that extends way beyond one state, but it’s also fixable, particularly if Democrats take back the Senate on Election Day.
The major hurdle starts at the top with Sen. Mitch McConnell, who has not only taken the unprecedented step of denying a hearing to President Obama's Supreme Court pick but has also moved at a slug-like pace on nearly all judicial nominations. Since the GOP assumed control of the Senate in 2015, Obama has gotten a total of 22 nominees through. That compares with 68 for George W. Bush, 73 for Bill Clinton, and 122 for George H. W. Bush in their final two years as president.
This has created an unusual amount of vacancies across the country as GOP senators have stalled in anticipation of a Republican takeover of the White House in 2017. But the problem is catastrophic in Texas, which now has 13 federal vacancies, including two on the 5th Circuit Court of Appeals, that are all considered "judicial emergencies" based on the backlog of cases and/or length of time the position has gone unfilled. Perhaps it's no surprise that contributing to the problem are GOP Texas Sens. Ted Cruz and John Cornyn, who have repeatedly failed to both screen candidates and submit recommendations to the president for consideration.
According to the Alliance for Justice, seven of those 13 are vacancies for which no one has even been nominated. In contrast, New York has four vacancies that haven’t seen a nomination and California has only one—yet both states have more authorized federal judges than Texas.
Not only is this allowing Republican politicians looking for certain outcomes to shop for a judge who will rule their way (discussed in detail here), it is also vexing the judges themselves. As the Alliance for Justice writes:
Judge Leonard Davis of the Eastern District announced in June 2014 that he planned to retire in May 2015. In his retirement letter, he warned that longstanding vacancies in the Eastern District make it hard for the remaining judges “to fulfill their constitutional responsibilities to the citizens of East Texas,” and he urged swift confirmation of his successor. [...]
As expected, Judge Davis retired on May 15, 2015, and the Texas senators had not even asked for applications to fill his seat.
An overwhelming case load accompanied by an under-resourced bench means two things: 1) the people of Texas have much less likelihood of getting their day in court, so to speak; 2) the judges can't possibly get to everything so they can expedite cases or not at will.
In fact, it was widely assumed that the three-judge panel in the 5th Circuit Court of Appeals purposely stalled its ruling late in 2015 regarding Judge Hanen's injunction in the immigration case, Texas v. U.S. The idea was to run out the clock on Justice Department lawyers who might be prevented from appealing the decision to the Supreme Court in time for the court’s 2016 term.
It's exactly these types of power grabs in the lower courts that the Supreme Court should be reining in. Indeed, the high court took note of the 5th Circuit’s stall tactic and, earlier this year, it imposed a deadline on the appeals court when it was reviewing a challenge to Texas’ Voter ID law. If the 5th Circuit bench hadn't issued a ruling by July 20, 2016, "an aggrieved party may seek interim relief from this Court,” the Supreme Court wrote in April with an eye to the November elections.
But in the immigration case, the Supreme Court fell short of being able to provide a proper check on Judge Hanen's injunction precisely because McConnell had deprived it of a ninth justice. So even though the Justice Department succeeded in getting a Supreme Court review of the 5th Circuit's ruling, it ultimately produced a 4-4 split among the justices and, thus, an indecisive result that let Hanen's order stand. The fact that the nationwide injunction survived has given license to the federal judges in the transgender bathroom case and the contracting case, both of whom cited Hanen's order as precedent.
"It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate," Judge Reed O'Connor wrote on October 18, 2016.
So this gives you a macro glimpse of the problem that starts at the top with the Senate and trickles down to the lower courts which are then empowered to have a outsized, if not unprecedented, impact on nationwide policy.
And no, this isn't the way it's supposed to work. Of course, Democrats could potentially rectify the problem if they retake control of the Senate. But even if they prevail on Election Day, the "blue slip" policy stands as a final hurdle to filling these vacancies expeditiously.
The blue slip is an old tradition, dating back to at least 1917, that lets senators have a say on which judges are appointed to courts in their home state. The way it works is that when a judge is nominated, the Judiciary Committee sends a "blue slip" to home state senators seeking their approval. If they sign off, the committee moves forward with the nomination. If one or both of them disapproves or withholds the blue slip, the nomination tends to grind to a halt.
This policy gave Cruz and Cornyn, for instance, two ways to stonewall judicial nominees in Texas. Not only did they fail to send a sufficient number of recommendations to the White House but they could stymie any nomination by withholding a blue slip, which one administration official framed as a "silent, unaccountable veto."
But the key here is that the blue slip policy is a “tradition,” not a rule that's been codified into law. Surely, GOP Sen. Chuck Grassley has been more than happy to adhere to it as chair of the Senate Judiciary Committee over the past two years. But the question is whether Democratic Sen. Patrick Leahy—who has been a proponent of the practice—will continue it if Democrats retake the upper chamber.
Here's what Leahy told TPM back in late 2013 when Democrats still controlled the Senate.
"I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate," Leahy said. "As long as the blue slip process is not being abused by home state senators, then I will see no reason to change that tradition."
So this may come down to Patrick Leahy's definition of abuse—do 11 judicial emergencies in one state constitute an injustice?
At the very least, they add up to a crisis where unelected federal judges have been permitted to override the powers granted to the highest elected official in the land.