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.