The White House has been at odds with Texas’ Republican senators and governor for months over two judicial vacancies, showing how tricky it can be for President Donald Trump to shape the judiciary even in seemingly friendly states.
The Trump administration announced the president’s seventh wave of judicial nominees earlier this month, but to the surprise of lawyers in Texas, there was yet again no mention of nominees for the US Court of Appeals for the Fifth Circuit.
There are three vacancies on the Fifth Circuit, which covers Texas, Louisiana, and Mississippi. Two of those open seats are for nominees from Texas, and they’ve been open since 2012 and 2013. With a Republican in the White House and two Republican senators in Texas — both of whom are lawyers and sit on the Senate Judiciary Committee — lawyers in the state expected nominees to come early in the new administration.
But for months, the White House, Sens. Ted Cruz and John Cornyn, and Texas Gov. Greg Abbott have been unable to agree on who should get the two slots.
There are four top candidates, all with solid conservative credentials: Texas Supreme Court Justice Don Willett, US District Judge Reed O’Connor, and attorneys James Ho and Andy Oldham. Each has his own champions, according to three sources familiar with the situation, and have reportedly been under consideration since at least February. The political wrangling over the seats was noted by news outlets in May, including Above the Law and the Austin American-Statesman.
The continued logjam speaks to the fact that as much as presidents fight with the opposition party over judicial nominees, senators from their own party can pose problems, too.
“There are a lot of people down here wondering when the Fifth Circuit is going to break,” one Texas lawyer familiar with the situation told BuzzFeed News.
Cruz is backing Ho, a Dallas-based lawyer at the law firm Gibson, Dunn & Crutcher. Ho succeeded Cruz as Texas solicitor general and he’s served on a state commission that Cruz and Cornyn rely on to vet federal court candidates.
Cornyn is pushing for O’Connor, who previously worked on Cornyn’s staff and was confirmed in 2007 to the federal district court in Fort Worth. Ho also served as Cornyn’s chief counsel, and Cornyn is supporting his bid for one of the seats.
Abbott, meanwhile, is advocating for Oldham, who serves as the governor’s deputy general counsel. Texas lawyers who have been involved in past judicial selection processes say it’s unusual for the governor to be part of these negotiations, since they have no formal role in the federal judicial nomination process. Former presidents have occasionally consulted governors on judicial nominees if they were from the same political party and the home state senators were members of the opposition.
“I don’t recall a governor of Texas ever being involved in the process,” said Hector De Leon, an Austin attorney and former member of the nominee vetting commission that Texas’ senators have relied on over the years. But he noted that Abbott is a former Texas Supreme Court justice, which might explain his interest.
Willett became nationally known during the presidential campaign last year, when Trump included him on a list of possible nominees for the US Supreme Court. Willett is also arguably the most famous judge on Twitter.
Passing over Willett for a nomination could be awkward for the White House, given his spot on the president’s Supreme Court list, said a second Texas lawyer familiar with the situation.
“The idea that you would bump somebody up and [Willett] would be overlooked is a concern to people, as a slight to the president,” the lawyer said.
Cruz and Cornyn aren’t opposed to Willett or Oldham, according to sources who spoke with BuzzFeed News, but they prefer that other candidates get a seat first.
Trump has the authority to nominate whomever he wants for the Fifth Circuit, but he would risk an intra-party conflict if he ignored Cruz and Cornyn’s wishes. The White House historically has deferred to the preferences of senators on federal court nominees from their states, especially for the US district courts.
But that deference has had limits when it comes to appeals courts. Given how few cases get to the US Supreme Court, the appeals courts are the final stop for most federal cases and set precedent for their judicial region. The White House historically has played a larger role in choosing appeals court nominees.
One source familiar with the process said in an email to BuzzFeed News in July that some senators “seem to less than fully appreciate that it is the President's prerogative to nominate for the court of appeals.”
Willett declined to comment for this story through a court spokesman. Ho, Oldham, and O’Connor did not return requests for comment, nor did representatives for Cruz, Cornyn, and Abbott.
The White House declined to comment on the Fifth Circuit vacancies. An official told BuzzFeed News via email that the administration “is committed to filling all the US attorney and judicial vacancies as quickly as possible. We are working with and extensively consulting all Senators nationwide in order to complete the nomination process.”
The Trump administration has moved on some of the open US district court seats in Texas, a sign that the White House is finding consensus with Cruz and Cornyn. Of the 11 district court vacancies in the state, 10 are considered judicial “emergencies” by the Administrative Office of the US Courts, given their caseloads. The White House in early September announced five nominees.
Making a dent
Trump inherited more than 100 federal court vacancies when he took office in January, and that number has continued to grow over the past eight months. Trump’s lower court nominations outnumber the federal court vacancies that have opened up since he took office, but with only five nominees confirmed so far, the administration has a long way to go to make a dent.
There are 144 lower court vacancies, and the federal judiciary has announced that at least 19 more seats will open up in the near future. Trump has 47 nominees pending in the Senate.
Conventional wisdom says it’s easier for a Republican president to fill vacancies in states with two Republican senators, since the White House and the senators are more likely to be in agreement on the types of nominees they want. And with a Republican majority in the Senate, Trump’s nominees are expected to receive a vote and win confirmation, notwithstanding efforts by Democrats and liberal advocacy groups.
Trump to date has nominated 14 appeals court nominees. Three have been confirmed, each from a state with two Republican senators. Trump hasn’t limited his nominees to red states, however: Of the 11 nominees still pending, eight are from states with at least one Democratic senator. Three Democrats — Minnesota Sen. Al Franken and Oregon Sens. Ron Wyden and Jeff Merkley — announced earlier this month that they’ll try to block appeals court nominees from their respective states, accusing the White House of failing to involve them in the selection process.
Besides Texas, there are open federal appeals court seats with no nominees yet in two other states with two Republican senators: Louisiana and Arizona. A spokesman for Arizona Sen. Jeff Flake said in an email that the senator "is working constructively with the White House and Senator McCain to fill the numerous federal vacancies in Arizona.”
Representatives for McCain and Louisiana Sens. John Kennedy and Bill Cassidy did not return a request for comment on Tuesday afternoon.
There have been 14 appeals court nominations under Trump, and 11 nominees are pending. A previous version of this story included incorrect numbers.
Updated to clarify the timeline of the political negotiations over the judicial nominations.