The Judicial Conference of the United States is a formal, nonpartisan body of federal judges that carefully analyzes courts' caseloads and makes recommendations concerning how many judgeships are needed to ensure that the work of justice gets done. It was a year ago that the Judicial Conference, chaired by the Chief Justice, asked Congress to create several dozen new federal judgeships to handle the nation's growing caseload. Among those were numerous new district judgeships in Texas. These are districts where just filling existing vacancies isn't nearly enough to ensure that Texas individuals and businesses have their day in court.
The Judicial Conference asked Congress to create two new judgeships and make permanent a temporary judgeship in the Eastern District, create two new judgeships in the Southern District, and create four new judgeships in the Western District. They also asked that a fifth, temporary judgeship be created for the Western District.
Districts listed in the Conference's request are among those most in need. But even within that group, Texas districts stand out for the severity of the crisis. In its cover letter to Patrick Leahy, the chairman of the Senate Judiciary Committee, the Conference urged immediate action on the five worst districts, two of which were in Texas:
[The caseload growth] has reached urgent levels in five of our district courts that are now struggling with extraordinarily high and sustained workloads. The severity of conditions in the Eastern District of California, the Eastern District of Texas, the Western District of Texas, the District of Arizona and the District of Delaware require immediate action. The Conference urges you to establish, as soon as possible, new judgeships in those districts. [emphasis added]
Unfortunately, these new judgeships have not been created and, given the gridlock in Washington, that seems unlikely to change soon. And that makes the inaction on filling the growing number of vacancies in existing seats all the worse.
When the Conference made its request, there were seven vacancies (one of them future), all without nominees. A year later, there are 11 vacancies (four of them future). Ten of the eleven vacancies are in the districts that are in such trouble that they would still need more judges even if every vacancy could be filled tomorrow.
That's where Texas Senators John Cornyn and Ted Cruz come in. The White House traditionally consults with home-state senators before making a district court nomination, often opting to wait until they receive recommendations. So while recognizing the urgency, the White House has also been solicitous of Cornyn and Cruz. Last April, the senators announced the formation of their Federal Judicial Evaluation Committee (FJEC) to help them identify and vet potential nominees. Unfortunately, despite the fanfare, they didn't actually task the Committee to do anything. That had to wait for more than three months, when the senators announced in July that he FJEC was accepting nominations for six current district court positions in the Southern (Houston, Corpus Christi, Brownsville), Eastern (Sherman, Texarkana) and Western (San Antonio) Districts.
These are the districts that the Judicial Conference says also desperately need new judgeships. Cornyn and Cruz can't snap their fingers and make that happen, although they should be working with their colleagues to get the necessary legislation passed. But what they can do right now is work to fill existing vacancies: the six vacancies they tasked their commission to look at last July, as well as the other vacancies that have been announced since then. Given the vacancy crisis in Texas courts, proposing nominees should be among these Senators' top concerns.
Let's hope we see a number of nominations soon.