My colleague, Ed Whelan, had a very helpful post recently on where vacancies currently stand as we head into the end of the current Congress. I want to break down the district court vacancies and see if we can figure out what’s going on there. This post will deal primarily with those in red states.
There are 14 current or future vacancies in red states without nominees: Three in Texas, two in Oklahoma and Florida, and one apiece in Louisiana, Alaska, Alabama, North Carolina, Tennessee, Missouri, and North Dakota.
Texas has been unusually slow in having its vacancies filled this administration. It’s widely believed that is due to conflict between Senators John Cornyn and Ted Cruz, who have a longstanding judicial-nomination system in place that sends an agreed-upon pick to the White House for every seat regardless of which party is in power. One hopes that the two of them will be realistic now that the Texas Republican primary is over. From Cornyn’s perspective, you want to fill the seats lest Ken Paxton trade one of them for a new set of china. At the same time, you probably won’t be inclined to let up on any candidates against whom you’re firmly against because, well, why would you?
Cruz is in a harder position as the returning senator. He, in theory, needs to be statesmanlike about it because he’s dealing with a broader time horizon. Unless he’s drinking his own bathwater, he needs to recognize that James Talarico could win. Is it likely? No. But it’s definitely possible. Cruz should understand this better than anyone given his near-death experience in 2018. Which means his rational incentive is to fill all the seats come hell or high water. Yes, he can gamble on holding out and waiting for Paxton to greenlight whatever it is he might want that Cornyn opposes, but that’s a gamble. He was a big poker player in his youth, but is he really willing to gamble with Texas judgeships? The smart play is to cut quick deals with Cornyn to fill these seats now and then, in the event Paxton wins, use people Cornyn won’t agree to for future vacancies.
Oklahoma is utterly inexplicable. One of the seats has been open for over a year. The fact of the matter is that Senator James Lankford’s views on what makes a good judge don’t always align with orthodox legal conservatism. On the one hand, that’s unfortunate. On the other, it’s life. Lucky for us there are two vacancies. This means he can get one according to whatever standard or process he uses, while the White House can get the other. There is no good reason this can’t happen yesterday. Furthermore, Lankford now is in elected leadership. He needs to set an example about working effectively with the White House. It will beggar belief if he doesn’t just cut a one-for-one deal immediately with Trump to get these seats filled.
Florida is complicated because one of the seats had a prior nominee who was opposed, I believe, by Senator Rick Scott and who was subsequently confirmed to a state court. The clock is ticking, though. South Florida has no shortage of great nominees. Scott, Ashley Moody, and the White House should just cut bait and run with two of them.
Louisiana’s vacancy goes back nearly two years. Senator John Kennedy always knows who he wants for judgeships so it’s fair to assume this is a problem with Senator Bill Cassidy. Good luck solving that. That said, Cassidy should think hard about this. If Julia Letlow replaces him, she’s in the pocket of Governor Jeff Landry, who is in turn in the pocket of the Louisiana trial bar. Cassidy is a medical doctor so if there is one thing he hates like the devil, it’s plaintiff lawyers. Whatever deal he cuts with the White House will be better from a defense-side perspective than whatever deal Letlow cuts. So while he does not seem to be in the cooperative mood these days, he really ought to be.
Alaska has problems, too. The court is small and understaffed so it really needs this judge. But Senator Lisa Murkowski’s view on judge-picking is objectively bad while Senator Dan Sullivan’s is aligned with the White House. I don’t know if there’s a pick available that threads this needle, but if there is, Sullivan should drop whatever notional objections he may have to any such pick and just get the person through. I don’t think Sullivan will lose in November but he clearly thinks it’s a possibility. A Sullivan–Murkowski compromise is better than a Murkowski–Peltola compromise.
The Alabama vacancy is relatively recent. Sadly, nepotism laws prevent Alice LaCour from joining her husband, Eddie, on the court. But there are other options. Just pick one.
Say what you will about Thom Tillis, the man knows his business on judges. I have no doubt that he’s working overtime to fill the vacancy in his middle district. Magistrate Judge Bob Numbers in the Eastern District would be a tremendous choice, but, all told, this is one I don’t worry about. Other eligible judges in North Carolina should take note — before they get a Democratic senator with a blue slip.
It’s a similar situation in Tennessee. The Eastern District is one of the strongest in the Sixth Circuit. Senator Marsha Blackburn should just accede to what the White House wants and fill the thing.
Missouri, too. Senators Eric Schmitt and Josh Hawley usually don’t waste time on these things. Luckily a lot of the talented young lawyers in Missouri worked for both of them! The Western District isn’t great, so this will be a helpful pick.
Lastly, there’s North Dakota. Until the remaking of Missouri’s Eastern District, North Dakota was the best venue in the notionally arch-conservative Eighth Circuit. Senator Kevin Cramer is a pro, and he almost certainly got what he wants with Judge Dan Traynor being elevated to the Eighth Circuit. He should just agree to a suitably conservative replacement and get him lined up.
Most of these delays come down to wrangling with the senators. The clock is ticking. Senators should look at the big picture and cut deals. It can be done.