Shared from the 8/13/2017 Houston Chronicle eEdition

Texas at center of courts overhaul

With 13 judicial posts open, Trump to have big effect on legal climate

By the numbers

138: Federal judge vacancies nationwide.

13: Federal judge vacancies in Texas (11 district court; 2 for 5th Circuit Court of Appeals).

52: Authorized federal judgeships in Texas.

35: Number of district and appeals court judges nominated by President Donald Trump through mid-August.

15: Number of judges nominated by President Barack Obama through mid-August 2009.

Source: United States Courts

WASHINGTON — President Donald Trump has racked up just a few legislative victories in Congress, but he is filling federal court vacancies at a record pace, hoping to reshape America’s judiciary while filling a nationwide backlog of openings that has Texas at its epicenter.

With a penchant for young, conservative judges in the mold of Supreme Court appointee Neil Gorsuch, Trump is expected to have an outsized impact on legal climate in the Lone Star State, which has more openings than any other state, some stretching back more than six years.

The state’s 13 openings — 11 at the district court level and two appeals court vacancies — have been a bitter pill for Democrats. Some blame the logjam on the state’s two Republican senators, John Cornyn and Ted Cruz, for slow-walking the selection process under President Barack Obama, creating a bounty of openings for his successor.

Cornyn and other Texas Republicans have blamed Obama, who they say was slow to put forward nominations in his two terms as president.

The upshot is a historic opportunity for Trump. Whatever his problems in Congress, he has a chance to remake the federal bench with judges serving lifetime appointments. And with the abolition of the Senate filibuster for district and appeals court judges, Trump only needs the votes of Republicans to confirm his picks.

From immigration to voting rights and social legislation, court watchers see a sea change coming in the federal courts, even if Trump doesn’t make it to a second term.

“The contrast between the types of judges President Obama advanced and those President Trump is advancing couldn’t be more stark,” said Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, a conservative legal organization.

Texas picks imminent

Republicans who once had doubts about Trump have taken heart in his conservative judicial selections, starting with Gorsuch, a pick that made good on a promise that helped Trump win the 2016 election.

But while much has been said about Trump’s slow pace in filling administrative positions, legal analysts say he has been filling court positions with breakneck speed.

As of mid-August, after nearly eight months in office, Trump has nominated 35 people for federal district and appeals court vacancies, more than double the 15 that had been named by Obama at this point in his presidency. President George W. Bush had appointed only four, though he added another 32 in September, 2001.

Other than a recent tax court appointment, Trump has yet to nominate anyone to fill any of the federal court openings in Texas, a state with caseloads so high that nine of the 13 vacancies have been classified “judicial emergencies.”

But sources close to the selection process believe his Texas picks are imminent, noting that candidates for all 13 openings have gone through a bipartisan Federal Judicial Evaluation Committee that reviews potential judges for the state’s two U.S. senators.

“Everybody realizes we need help, and help is on the way,” said San Antonio attorney David Prichard, who chairs the review panel.

Prichard and other members of the panel said they finished vetting nominees in April, sending the names on to Cornyn and Cruz, who make recommendations to the White House.

Although the state review panel is bipartisan, it only makes recommendations. Democrats expect the new crop of judges to lean distinctly to the right because of the influence of the state’s two senators and their Republican allies in Washington.

While the stars are aligning for conservatives in Texas, some analysts see the state’s big judicial backlog as a case study in the pitfalls of the Senate confirmation process.

“It’s not coincidental that so many vacancies were open for Trump to fill,” said Lena Zwarensteyn, director of strategic engagement at the liberal-leaning American Constitution Society. “There was plenty of opportunity to fill these vacancies for a number of years.”

One of the oldest Texas vacancies, in Corpus Christi, has been vacant since 2011, three years into Obama’s first term.

The last group Obama judicial nominees from Texas got caught up in the politics of last year’s presidential election, after Cruz and Cornyn had recommended the five judges to the White House to fill vacancies in Texas.

The Texas judges went before the Republican-led Senate Judiciary Committee last September, breaking a long-standing Senate rule against late-election confirmation hearings. The hearing was timed, some Democrats believed, as insurance against a victory by Hillary Clinton, who was then ahead in the polls.

But with Trump’s upset victory in November, no vote was ever held, and the nominations were allowed to expire.

Cornyn and Cruz, both lawyers, started the process again early this year. But this time, they are not recommending candidates for Obama, but for Trump, a member of their own party.

In theory, they could recommend the same judges they put forward last year, since they’ve already been vetted and passed background checks. But few analysts see that as likely, given that they now have the taint of being “consensus” candidates officially nominated by Obama.

“Under Obama, it had to be someone who probably was acceptable to both Obama and the two senators from Texas,” said University of Houston political scientist Robert Carp, who studies the federal courts. “So I would assume that the new nominees are going to be somewhat more conservative. It just stands to reason.”

It also stands to reason for Austin attorney Raul Gonzalez, a retired Texas Supreme Court Justice and vice chair of the state’s judicial evaluation panel. “It’s a cliché, but election results have consequences,” he said. “It’s easier when you have two senators of the same party, and more so of the same party as the president.”

‘A great opportunity’

To Democrats, the stymied Texas judges suffered the same fate as Obama’s Supreme Court nominee, Judge Merrick Garland, who never got a hearing in the Republican-led Senate. It proved to be a stalling strategy that succeeded in paving the way for Trump to install Gorsuch.

Deliberate or not, Trump now has the chance to fill all 13 vacancies out of 52 federal judgeships in Texas. Counting the pending appointments of four new U.S. attorneys for Texas, that brings to 17 the number of legal vacancies Trump can fill in the state.

“It’s a great opportunity,” said University of Richmond law professor Carl Tobias, who studies the federal judiciary. “He can name almost a quarter of the judges right out of the chute, and there will be other opportunities as well.”

With a total of 138 district judge vacancies around the nation, partisans on both sides expect Trump’s mark on the federal bench to make a profound difference.

While Obama was sometimes faulted for going slow in filling the federal judge positions, he is credited by Democrats — and blamed by Republicans — with remaking the federal appeals court system in his ideological image.Of the nation’s 13 federal appeals courts, only one had a majority of Democratic appointees when he took office. When he left office, there were nine.

Those courts, along with their lower court counterparts, have been instrumental in a string of liberal legal victories on sanctuary cities, immigration, voter ID laws, transgender bathroom rights, and, with an assist from the Supreme Court, upholding Obamacare.

“I think President Obama appointed the most liberal, I would say radical, judges that have ever sat on the federal bench in our entire history,” said Hans von Spakovsky, a legal analyst at the conservative Heritage Foundation.

Now conservatives see a chance to reverse that legacy by replacing what they see as “activist” liberal judges with “constitutional” conservatives.

Even as Trump’s legislative agenda of Obamacare repeal and tax cuts appears to be stymied in Congress, conservatives see the courts as one area where he can keep his campaign promises and shore up his own activist base.

The sudden death of Supreme Court Justice Antonin Scalia at a hunting camp in Texas last year rallied conservatives, and made his replacement by an equally conservative justice a marker in the presidential election.

“The American people, uniquely in this election, had the issue of the courts squarely in front of them,” said Severino, whose group lobbied to block Garland and promote Gorsuch to the Supreme Court. “It was the Number One issue for more than a fifth of the voters, and by wide margins those people voted for Trump.”

Ideological bents

Liberals who have counted on the federal courts as a bulwark against Trump’s attack on all things Obama see a brazen politicization behind Trump’s aggressive push to fill court vacancies.

“There are definite ideological bents to those folks who are being nominated in a way that would not have been seen in previous administrations,” Zwarensteyn said.

The confirmation of Gorsuch to replace Scalia has been touted as one of the biggest achievements of Trump’s first six months in office. But liberals credit Trump less than the conservative activists who helped compile a list of suitable candidates during the election from which Trump agreed to pick.

“The idea that they outsourced the selection process was unheard of in previous administrations,” Zwarensteyn said.

But while the Supreme Court battles get most of the attention, the day-to-day impact could be more pronounced by Trump’s picks for the lower courts in states like Texas, with large backlogs and huge caseloads.

Said Spakovsky: “Folks who think they should only pay attention when it’s Supreme Court or appeals court judges who are being considered are being short-sided.” kevin.diaz@chron.com twitter.com/DiazChron

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