Federal Courts and Nominations

Did Senator Cornyn Forget About His Letter To President Obama?

Right now, there are six vacant seats on the very busy federal District Courts in Texas, with no nominee pending to fill any of those vacancies, four of which are considered to be judicial emergencies.  One of those six vacancies dates back to November 2008, and two of them to 2011.   Last week, during a meeting of the Senate Judiciary Committee, Senator John Cornyn (R-TX) sought to blame President Obama for the lack of nominees, and to absolve himself (and his Republican colleagues) of any responsibility for this dismal situation. 

According to Cornyn, “The president’s got to nominate somebody before the Senate can act on it.”   That simplistic answer was met by pushback from Senator Sheldon Whitehouse (D-RI) and Committee Chairman Patrick Leahy (D-VT), who reminded Senator Cornyn that it is the longstanding practice for District Court nominees to be recommended to the Administration by home-state Senators, and that the Judiciary Committee will not even proceed to consider a nominee if one or both of those Senators has not consented to such consideration by returning the so-called “blue slip.”

There’s something else Senator Cornyn should be reminded of:  the March 2, 2009 letter that he and all 40 of his Republican Senate colleagues sent to the newly-elected President Obama basically threatening to block judicial nominees from their own states unless they were consulted about and approved of those nominees.  Describing the “process of federal appointments” as a “shared constitutional responsibility,” and noting “the Senate’s unique constitutional responsibility to provide or withhold its Advice and Consent on nominations,” the Republican Senators made clear their intent to preserve what they called “[t]he principle of senatorial consultation (or senatorial courtesy)” when it came to judicial nominees.  The Republican Senators then made a thinly-veiled filibuster threat:

We hope your Administration will consult with us as it considers possible nominations to the federal courts from our states.  Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.  Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not.     

Senator Cornyn’s efforts last week to shift the blame to the Administration for the lack of nominees for the six Texas federal District Court vacancies and portray the judicial nominations process as operating by some sort of unilateral White House fiat is belied by the Republican Senators’ 2009 letter.  If President Obama were to nominate people to fill the vacancies on the federal courts in Texas who did not have the approval of the Texas Senators, those nominees would go nowhere, and Senator Cornyn knows it.  His 2009 letter as much as said so. 

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone