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Texas Judges at Federal Courts Struggle As Bench Vacancies Grow

Jorge Sanhueza-Lyon/KUT
Texas has some of the busiest federal courts in the nation – and some of the most judicial vacancies. The Western District Court in Austin doesn't have vacancies, but judges struggle with heavy dockets.";

Texas has some of the busiest federal courts in the nation – and some of the most judicial vacancies. That means judges who are on duty in Texas are struggling.

Right now, seven seats are vacant at federal district courts in Texas. Four more vacancies are expected by 2015. That’s more than 20 percent of federal judgeships in the state.

The administrative office of the U.S. Courts has listed four of the current vacancies as judicial emergencies. Meanwhile, three of Texas’ nine seats at the Fifth U.S. Circuit Court of Appeals in New Orleans are vacant. Those are also listed as emergencies.

"Just think about it this way. If the Dallas Mavericks or the San Antonio Spurs or the Houston Rockets had to take the court with four players instead of five, they wouldn’t be very successful. They couldn’t get the job done. And that’s really where our federal courts are now."

That’s former U.S. District Judge Royal Furgeson. He’s now the dean of the new UNT Dallas College of Law. He left the federal court in San Antonio in 2008 and no one’s replaced him.

"When you have a president in one party and then the state’s two senators in another party, the process becomes complicated because the president has to nominate and the Senate has to confirm," Furgeson says. "And of course the Senate will defer to the senators from the home state."

No new federal judge has been confirmed for Texas since early 2012.

But Furgeson says he’s optimistic after President Barack Obama and Republican U.S. Sens. Ted Cruz and John Cornyn agreed on one nominee late last year. In December, President Obama nominated Judge Gregg Costa to the Fifth U.S. Circuit Court of Appeals. In March, his nomination passed out of the Senate Judiciary Committee. The full Senate has yet to vote on the nomination.

"I’m hopeful that both our president and our two senators are beginning to get into a rhythm where we can move our appointments along," Furgeson says. "I think there’s every reason to be encouraged by the Judge Costa example."

But filling judicial vacancies involves a lot of people and steps.

"The important thing to remember is that this is a negotiated process with a lot of players, including the White House, Democratic Congressional leaders, Department of Justice and the two U.S. Senators from Texas and the committee they’ve appointed to vet these applicants for these federal benches," says Ross Fischer, director of the UT Law School Legislative Lawyering Clinic.

Sen. Cornyn's office says the White House is considering three candidates right now.

"And also remember there are judges who have taken senior status who can continue to hear these cases in an effort to keep the federal dockets moving forward and expeditiously," Fischer says.

For at least 20 years, visiting judges from other states have come to help judges in Texas handle their full dockets.

"The heaviest dockets in Texas, and in the United States, are the criminal dockets on the border," Furgeson says. "And we had judges not only from Louisiana but from all over the United States coming to the border to help relieve the docket congestion in those cases.  

He says Texas not only has heavy criminal dockets, but also things like patent cases. And the pace at courts will continue to slow down.

"That of course is bad for litigants, it’s bad for society. Cases need to get resolved so that people can get on with their lives and so that society can benefit as well," Furgeson adds.

Michelle Schwartz, director of Justice Programs at the Alliance for Justice, says even if every single vacancy were filled tomorrow, there’d still be a shortage of judges in Texas.

"The Judicial Conference of the United States has recommended increasing the number of district court judgeships in Texas by eight new permanent district court judges as well as a couple of temporary judges. And converting one from temporary to permanent," Schwartz says.

Schwartz says when cases are delayed, memories fade, medical expenses for someone injured can pile up, or witnesses may die.

"And so your ability to get justice is severely hindered," she adds.

Generally, criminal cases need to go forward because of legal requirements for speedy trials. But the civil cases are the ones that get put on hold.