Federal Courts and Nominations

Cornyn should shoulder blame for judicial vacancies

There are six vacant judicial seats on the very busy federal district courts in Texas, including one that has been vacant since 2008 and two since 2012.


Four of the vacancies are considered judicial emergencies. And yet, there are no nominees pending to fill any of those six seats.


Last week, during a Senate Judiciary Committee meeting, Sen. John Cornyn, R-Texas, sought to blame President Obama for the lack of nominees to fill these vacancies.


Cornyn clearly was seeking to score political points against the president as well as absolve himself and his Republican colleagues of any responsibility for the dismal situation in Texas and on other federal courts.


According to Cornyn, “The president’s got to nominate somebody before the Senate can act on it.”


There is no doubt that, under Article II of the Constitution, the president has unilateral power to nominate people to sit on the federal bench. But the Constitution also provides an “Advice and Consent” role for the Senate, which in practice has meant that district court nominees are not unilaterally chosen by the president.


As both Sen. Sheldon Whitehouse, D-R.I., and Judiciary Committee Chairman Patrick Leahy, D-Vt., were quick to remind Cornyn, recommendations of potential nominees to fill open district court seats traditionally come from home-state senators.


Senators provide names of potential nominees to the president, and individuals are then put through a careful vetting process by the White House before a person is formally nominated.


Moreover, for nearly a century, the Judiciary Committee has relied on “blue slips,” a letter sent to a nominee’s home-state senators asking them to take a position on the nomination.


Longstanding tradition, upheld by Leahy, dictates that the committee will not move forward on a nominee until both blue slips have been returned.


Republican senators insisted on these prerogatives at the very outset of the Obama administration.


On March 2, 2009, all 41 Senate Republicans, including Cornyn, sent a letter to the newly elected President Obama, basically threatening to block judicial nominees from their own states unless they were consulted about and approved those nominees.


In his blame-shifting remarks last week and his defense of those remarks since then, Cornyn ignored this letter.


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 in their letter made clear their intent to preserve what they called “[t]he principle of senatorial consultation (or senatorial courtesy)” when it came to judicial nominees.


They 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.”


Cornyn’s efforts to shift the blame to the administration for the lack of judicial nominees 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 Obama were to nominate people to fill the vacancies on the federal courts in Texas without input from or the approval of the Texas senators, those nominees would go nowhere, and Cornyn knows it.


Judith E. Schaeffer is vice president of the Constitutional Accountability Center, a Washington, D.C.-based think tank, law firm and action center focused on the progressive promise of the Constitution’s text and history.

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