In discussing the severe conditions of the federal courts in Texas, we have noted that the Western District is one of the areas in particularly desperate need of new judges. The nonpartisan Judicial Conference of the United States – the principal policymaking body concerned with the administration of the federal courts – asked Congress last year to create four new judgeships in the Western District, as well as a fifth, temporary judgeship, bringing the total up from 13 to 18. So even if there were no vacancies in the Western District, you'd still need to increase the number of judges by 40% to make sure the courts could work effectively.
Unfortunately, the Western District has the dubious distinction of having the second oldest district court vacancy in the United States, going all the way back to 2008, when Judge Royal Ferguson of San Antonio took senior status and moved to another district. At a 2011 Brookings Institute event, Judge Ferguson discussed the importance of creating new judgeships and filling vacancies in existing ones:
We need more federal judges, we need more judgeships, and pending vacancies create an enormous difficulty. We need to do our civil cases. The business of America is business. And when businesses can't figure out if their patents are good, if their contracts are good, they can't figure out what to do about their tax situation, and so forth and so on, things bog down. And businesses need a strong rule of law and prompt rulings by judges. And they can't get it on the border.
He also described how the enormous caseload harms the deliberative process we expect from judges:
I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court. And I felt like I was in night traffic court. The problem, of course, in night traffic court if my client got fined it was going to be a couple of hundred bucks at the most, and the problem that I had with the defendants before me, they were looking at years — potentially years and years in a federal prison. And I was able to give them about as much attention as I could see those traffic judges giving their — the defendants before them attention when the fines were about $100 or $200. It was not a good feeling and federal judges all across the border continue to deal with this problem of not having the time it takes to really consider what they're doing, especially in sentencing.
Back in September of 2012, Hawaii Judge David Ezra explained why he was moving to West Texas to help the beleaguered district, even though that would quadruple his caseload:
This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire.
In March of last year, Chief Judge Fred Biery of the Western District discussed what it was like not having enough judges to handle the caseload:
It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle.
The Western District's online calendar has long had entries in the Del Rio Division for "Visiting Judge 1" and "Visiting Judge 2." Later this month, Kentucky's Danny Reeves will be the one lending the Del Rio court a hand.
Unfortunately, things are bound to get worse in the Western District if something isn't done soon: Judge Robert Junell announced earlier this year that he plans to take senior status next February, giving more than a year's notice in the hopes that his replacement will be identified, recommended, nominated, and confirmed in time. In addition, it has been reported that President Obama is considering elevating Judge Xavier Rodriguez of San Antonio to the Fifth Circuit Court of Appeals, which would create yet another vacancy in the Western District.
Last July, Senators John Cornyn and Ted Cruz tasked their Federal Judicial Evaluation Committee to recommend to them potential nominees, including one for San Antonio – the vacancy that has been open since 2008. But with a second Western District vacancy known to be opening next year and a third one possible as well, let us hope that the senators work with the White House to fill every vacancy as soon as possible.
Surely America can do better than the rickety judicial system that Texas has been experiencing.