Natalie Knight and AFJ Dorot Fellow Aug. 27, 2015, 11:53am


From Justice Watch

Over the weekend, Eastern District of Texas Judge Michael Schneider announced that he’ll leave active duty and take “senior status” in January 2016. By providing over four-months’ notice, Judge Schneider gave the Texas senators charged with finding his replacement an opportunity to do what they have never done before: fill a judicial vacancy before the judge actually steps down and further weakens an already strained justice system.

Avoiding the disruption of a vacancy is, after all, the whole point of giving advance notice. In other states, senators often begin working on a vacancy as soon as it’s announced. But not Senators John Cornyn and Ted Cruz. Instead, they have watched vacancies pile up—ignoring, in some cases, more than a year of notice. They have refused to take action until a judge has left the bench, or even long afterward.

Nine Texas federal district judges have stepped down while Cornyn and Cruz have been in office. In each case the judge left before the senators even asked candidates to submit applications. That slow-motion process is contrary not just to common practice nationwide, but to the precedent John Cornyn himself established when fellow-Republican George W. Bush was in office. When Cornyn and Republican Kay Bailey Hutchison served in the Senate under President Bush, five Texas judges gave advance notice of their departure, and for all five the senators recommended replacements well before the vacancies became current. For three of the seats, President Bush was able to make a nomination before the outgoing judge left the bench.

With Cornyn and Cruz dragging their feet under President Obama, Texas has become the epicenter of a growing judicial vacancy crisis. Including two seats on the Fifth Circuit, Texas has nine current judicial vacancies (the most of any state in the country), three of which have been vacant for over two years. Seven of the vacancies are officially designated “judicial emergencies” because of crushing caseloads and desperately needed judges. The extraordinary number of vacancies requires Texas’s remaining active judges to travel—sometimes for hours—to help neighboring courts manage their dockets.

Texas has been in dire need of more judges for years, but Judge Schneider’s vacancy in particular should provide extra incentive for Cornyn and Cruz to avoid delay and take immediate action. The Eastern District of Texas is the second busiest court in the country. It’s so overburdened that the Judicial Conference of the United States called for adding two new judgeships, in addition to filling existing vacancies.

What’s more, the courthouse in Tyler, Texas, where Judge Schneider presides, is already down one judge due to the recent retirement of Judge Leonard Davis. Judge Davis provided almost a year’s notice before retiring in May 2015, and explained in his retirement letter that, without a swift replacement, it would be difficult for the remaining judges to “continue to fulfill their constitutional responsibilities to the citizens of East Texas.”

The Tyler Area Chamber of Commerce and Tyler Economic Development Council also urged Cornyn and Cruz to ensure the “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler.” Yet despite these pleas from those most affected by vacancies—the people and businesses who rely on courts to provide justice, and the judges who must work longer and harder to meet growing caseloads—Cornyn and Cruz continue to play politics with the courts, and have not yet started the process to find Judge Davis’s replacement.

Senator Cornyn says he “work[s] . . . to fill openings as they arise,” but he and Senator Cruz can do much better by looking for replacements before they are needed. Judge Schneider’s vacancy could be yet another blow to a court system that for years has been pummeled by a barrage of new vacancies, or it could signify a turning point for Texas courts. Senators Cornyn and Cruz have a choice: let the Texas vacancy crisis grow even worse, or start looking for the judges Texans desperately need.

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