How to Secede From the Union, One Judicial Vacancy at a Time

By refusing to help fill the nation's empty trial benches, some senators are intentionally creating a vacuum of federal legal authority.
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A federal courthouse in San Antonio, part of the Western District of Texas (Eric Gay/Associated Press)

Secession can come in many forms—just ask anyone in Texas who cares to discuss the issue with you. One particularly effective strain currently wending its way through America has been largely ignored by reporters, political analysts, and legal scholars, even though it's a bipartisan problem within the federal government itself that undermines the rule of law and hinders the lives of millions of citizens. 

Call it secession by attrition. Some Republican senators and a few Democrats as well are starving the federal courts of the trial judges they need to serve the basic legal needs of the litigants who come to court each year seeking redress of their grievances. One federal-trial seat in Texas has been vacant for 1,951 days, to give just one example. The absence of these judges, in one district after another around the country, has created a continuing vacuum of federal authority that is a kind of secession, because federal law without judges to impose it in a timely way is no federal law at all.

The absence of these judges means that cases of all types cannot be resolved in a timely fashion. It means a form of lawlessness. A recent study from the Center for American Progress identified a backlog of more than 12,000 federal cases exists in Texas alone because the two current senators there, both conservative Republicans and ardent foes of the Obama Administration's legal views, have slow-walked trial judge nominations.

This is not the familiar narrative about judicial candidates where Republican intransigence in the Senate is weighed against the slow pace of White House nominations. Whereas judicial vacancies decreased both during the Clinton and George W. Bush Administrations—especially the latter—they have increased during the Obama Administration.

The reason there are so many vacancies without nominees is that certain senators are making strategic choices not to recommend federal trial-court nominees to the White House. These lawmakers are saying that they would rather have no one interpreting federal law in their states than to have more Obama-appointed judges interpreting the law. What's missing from the political equation is that it's the citizens in these states who are hurt by lengthy case delays.

This is a form of secession because it represents a hollowing out of the federal judiciary to an extent that limits federal authority over millions of citizens. It's an intentional act by the legislative branch to keep the judicial branch from effectively performing its constitutionally mandated functions. And it's a neutering of a co-equal branch achieved without a constitutional amendment or statute, or even much public debate, about expressly limiting judicial power.

* * *

There are currently 59 federal court vacancies for which there are no pending nominees. This number represents more than half the number of current vacancies in total, including those seats for which there are nominees. Thirty-nine are current vacancies, that is to say, federal judicial seats that now sit empty. The other 20 are future vacancies, seats that will soon become vacant because their current occupants have declared that they wish to retire or take senior status. 

Of the 39 current judicial vacancies without a nominee, more than 30 are in districts in states that have at least one Republican senator. Half the total—at least 19—come from states with two Republican senators. Of the 20 future vacancies without nominees, roughly 15 come from states with at least one Republican senator. And, again, roughly half (at least nine) come from states with two Republican senators.

Today in Texas, for example, there are seven vacancies without nominees on the federal-trial bench and two appellate vacancies without nominees assigned to Texas on the Fifth U.S. Circuit Court of Appeals. Texas litigants are so under-served that there are today in Texas and the Fifth Circuit seven "judicial emergencies" cited by the Administrative Office of the U.S. Courts. This sorry state of affairs evidently is okay with Senators John Cornyn and Ted Cruz.

It also sucks to be a federal litigant in Kentucky, a relatively smaller state where there are currently four federal-trial vacancies for which there are no nominees. One of these districts, vacant now for more than two years, has been deemed another one of those "judicial emergency" districts because of dire case delays. Senators Mitch McConnell and Rand Paul, both Republicans, appear to be in no rush to come to the aid of their fellow Kentuckians who seek relief in court. 

Perhaps the most disheartening example comes from Pennsylvania, a state with divided representation. Senators Bob Casey, the Democrat, and Pat Toomey, the Republican, work together on some nominees but somehow can't work together long enough to fill the eight federal-trial vacancies for which there are today no nominees. Ironic, isn't it, that the site of Gettysburg would so long countenance such a pervasive vacuum of federal authority?

You know what's the worst part? Even if the Senate and the White House miraculously got their acts together and promptly filled all existing vacancies with competent judges this year there still would be the need for at least eight more new trial-judge positions in California, Texas, and Arizona to handle the brutal load of federal cases along the border. The Alliance for Justice has a series of wonderful charts that illustrates all of this.

* * *

What's happening here is part of a blunt political and ideological strategy: These particular senators have maneuvered so that the citizens of red states have less federal judicial oversight than citizens of blue states and purple states. This is great news if you are a secessionist or hate the idea of federal power exercised through the judiciary. It's terrible news if you believe that the rule of law requires that very federal judicial authority, equal throughout the nation, as part of the delicate balance imposed by the Constitution and Bill of Rights.

The easy response, offered up recently by the Texas delegation, is that it's the White House's fault, too. But it's not. By seeking to work with home-state senators on these trial-court nominees, by giving the most relevant lawmakers first crack at suggesting names, the Obama Administration is doing precisely what its predecessors have done, out of tradition if not necessity. Article II, Section 2 of the Constitution, remember, requires the "advice" and "consent" of the Senate as a whole—not that of the two home-state senators.

Until this latest iteration of Congressional intransigence the White House tradition of relying upon the good graces of home-state senators to funnel up judicial candidates has worked reasonably well. No sense in the executive branch ticking off the legislative branch right from the start. What's different now, though, is that certain senators are refusing to play this game any longer. Judicial vacancies decreased 57 percent during the Bush Administration. Why? Because Republican senators rushed to fill these empty seats. No more.

But think for a minute how self-destructive this strategy is. A basic function of government—a basic "constituent service" as a senator might call it—is to make sure the courts are appropriately staffed and running efficiently to ensure that litigants are afforded their rights to pursue their cases and causes. By subverting this goal, by seceding from federal judicial authority by attrition, these senators are dooming their constituents to a third-world legal system.

And the sad truth is that there is no political price these obstructionists pay for failing to serve their constituents. Until litigants start picketing courthouses begging for more judges and faster dockets, there is no reason to think anything will change. Instead, citizens harmed by this brand of congressional nihilism will suffer mostly in silence. Business simply won't get done because judicial disputes remain unresolved. Or families will linger in limbo because of delays in immigration or pension rulings.

The facts behind these statistics are just some of the newest arguments against one of the worst and most self-defeating Senate "traditions": the granting to local senators of what amounts to veto power over federal judicial nominees. This doesn't just happen through the infernal use of the "blue-slip" on circuit-court nominees; it happens more informally as we see in cases of trial judges. And the vast majority of these vacancies without nominations are on the trial bench, where most of the nation's judicial action happens.

The reason this important story isn't covered well on television is because there are no dramatic images attached to it. The reason the White House doesn't highlight the problem more often is because it still needs to work with these intransigent senators on future nominations. But I can think of few functions more basic to the legislative and executive branches than ensuring that the judicial branch has enough judges to meet the needs of the people. This Senate today is failing that elemental task. It's secession from within. And it's working.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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