Senator John Cornyn speaks at the Crossroads Summit.
Texas Public Policy Foundation

Empty Suits, Empty Seats


A version of this story ran in the April 2016 issue.

Above: Texas Republican Senator John Cornyn, pictured above at a right-wing policy summit in 2015, and Senator Ted Cruz have done pioneering work on keeping federal judge seats open in Texas. Now that President Obama has an empty Supreme Court spot to fill, it looks like their technique is trickling up.

Within minutes of confirmation that Justice Antonin Scalia lay dead south of Marfa, the word came down: There would be no replacement, at least not for the next year. Senate Republicans made clear they would rather have an understaffed Supreme Court than let President Obama make his mark.

The sudden impasse is both predictable and dispiriting. In many ways, what the Republicans are doing makes perfect sense. If the situation were reversed and President Ted Cruz were preparing to nominate a successor to Justice Ruth Bader Ginsburg in his last year in office, Senate Democrats likely would be stalling too.

But it is distressing because it represents another little fissure in the framework of American government. Until recently, Republicans accepted nominations from Democratic presidents and vice versa because the most important thing was to keep the levers of justice moving. The parties disagreed on many things, but still shared a commitment to the basic functioning of the state.

Like much dysfunction in Washington, D.C., the rot can be traced to Texas. Senators John Cornyn and Cruz have done pioneering work in showing that you can simply not promote new judges. The proof is in the U.S. 5th Circuit, one of the most conservative in the country. It’s Cruz and Cornyn’s responsibility to submit possible names for consideration to the president, who makes new nominations. Apparently afraid of what Obama will do, they simply haven’t.

Two vacancies on the 5th Circuit have gone unfilled since 2012 and 2013, and there are nine empty seats on district courts in Texas, some from as long ago as 2011. Observers expect an additional wave of retirements from the aging pool of justices: They call Texas the front line in a national judicial crisis.

Cruz and Cornyn claim to be doing due diligence on potential nominees, but that’s a transparently phony excuse. Vacancies in other states, even very conservative ones, are still filled pretty quickly. Louisiana, also part of the 5th Circuit, has two district court vacancies to Texas’ nine, but both seats came open less than a year ago and nominations are pending. Mississippi, also in the 5th, has no vacancies. It’s a strange state of affairs: Both Texas senators have the privilege of serving on the Senate Judiciary Committee. One is the former state attorney general, and the other was the solicitor general. Cruz even chairs a subcommittee with oversight of the federal court system.

Yet they’ve colluded to let the federal court system in the state crumble, despite Texas’ outsized need. The Eastern District of Texas is the second-busiest district in the nation, and the Southern and Western districts see a hugely disproportionate number of felony criminal cases, due to their proximity to the border.

There’s a depressing theory among some political scientists about the direction of the country. Much of what keeps America running day to day is a set of norms built up over time. They’re not rules outlined in the Constitution, but rather a product of mutual agreement. But as the two political parties become increasingly polarized, there’s less of that agreement; so the norms have been breaking down.

One example is the Senate’s cloture rule. It used to be that most bills needed 50 votes to pass the upper chamber. Now the standard is often 60. With Congress increasingly gridlocked and important legislation less and less likely to be passed, presidents have turned to their own executive authority, which in turn weakens the bonds between branches of government and increases distrust.

It’s an escalating tit for tat. And in the case of the politicization of the judiciary, Democrats are partly to blame, too. The denial of a seat on the Supreme Court to Ronald Reagan’s nominee Robert Bork may have been justified, but during the Bush administration, Senate Democrats filibustered the nomination of the conservative Miguel Estrada to the important D.C. Circuit Court in part because they feared his potential to become the first Hispanic Supreme Court justice.

As in the other cases, Cruz and Cornyn picked up a baton dropped by the opposition to further test the boundaries of our constitutional system. With the 5th Circuit, they accelerated a slowly mounting constitutional crisis. With Scalia’s death, their colleagues escalate it further.