Updated at 11:31 a.m. on Thursday: Revised to include additional information about blue slips.
WASHINGTON – A potential showdown looms over Texas appointments after the White House tapped Rep. Eddie Bernice Johnson, a Dallas Democrat, to lead judicial vetting efforts that have traditionally been handled by the state’s Republican senators.
The arrangement, while not unprecedented, may foreshadow bruising partisan battles in the coming months over lifetime appointments to the bench, as well as key U.S. attorney spots.
House members have no defined role in that confirmation process, which instead works through the Senate. But there is an inherent tension in Texas these days: Democrats control the White House and Senate, while Texas Sens. John Cornyn and Ted Cruz are stalwart conservatives.
Johnson, a 15-term lawmaker who said the White House had tasked her to work with other Texas Democrats, channeled years of Democratic complaints that the GOP has stiffed them on judicial nominations by saying there is now “some expectation from our delegation that we have input.”
“It worked very well under Sen. [Phil] Gramm and Sen. [Kay Bailey] Hutchison,” she explained, referring to the two Texas Republicans who preceded Cornyn and Cruz in the Senate. “It hasn’t worked as well under Sen. Cornyn and Sen. Cruz.”
Cornyn and Cruz have pushed back on Democrats’ criticism that they’ve slow-walked the process under Democratic presidents and pressed fast-forward under GOP ones.
But the big question now is whether President Joe Biden and other Democrats — including Sen. Dick Durbin, the new chairman of the Senate Judiciary Committee — will really play hardball with the Texas Republicans by ignoring traditions designed to protect senators in the political minority.
Front and center in the process are so-called “blue slips,” which can provide individual senators the significant ability to block judicial candidates for positions in their home states. Durbin has indicated that he will keep the status quo for now -- emphasis on “for now.”
“It depends on how the Democrats want this to play out,” said Lisa Blue Baron, an influential Dallas attorney and Democratic political donor. “They can say, ‘Hey, it’s our turn. We don’t care.’ Or they can say, ‘Let’s be nice, and let’s do the blue slips.’ Nobody knows right now.”
District and circuit courts don’t have near the profile or power of the U.S. Supreme Court. But those lower courts handle the bulk of the work in the federal judicial system, positioning them to still have major sway over issues ranging from immigration to the environment to civil rights.
In Cornyn and Cruz, Texas has two members of the Senate Judiciary Committee who’ve paid close attention to those bench positions.
The duo helped confirm some 25 judges to the federal courts in Texas during former President Donald Trump’s term. They’ve hailed that push as proof of their conservative bonafides, though they are quick to point out that several of those judges received broad Democratic support.
The senators also often cite their Federal Judicial Evaluation Committee, which they tout as a bipartisan group of lawyers that helps them vet and select potential judges and prosecutors.
Cornyn spokeswoman Natalie Yezbick, asked how the senator will handle judicial nominations in the Biden era, said Cornyn “intends to work together with Sen. Cruz and the Biden administration to ensure that Texas continues to have top-notch judges and U.S. attorneys.”
She added that “even though the House has no formal role in the process, Sen. Cornyn has taken input from Texas Democrats, including Congresswoman Johnson, on nominees.”
Cruz spokeswoman Jessica Skaggs likewise said that Texas’ junior senator “will continue to work with the president and his colleagues to ensure that Texas has principled, constitutionalist judges who will follow the rule of law.”
There’s still the real potential for clashes in Texas over judicial nominations, though it could take some time for those disputes to materialize. While a new slate of U.S. attorneys will need to be dealt with relatively soon, there are currently no vacancies on the federal bench in Texas.
Much of the ongoing tension can be explained by how the status quo came about on Texas’ four district courts and the 5th Circuit Court of Appeals, the appellate court that covers the state.
Trump — working with Kentucky Sen. Mitch McConnell, the top Republican in the Senate — made federal judges a centerpiece of his four years in the White House, confirming them at a far faster pace than his predecessors, both Democrats and Republicans.
In Texas, Trump-appointed judges now comprise a plurality on the lower federal courts.
‘We didn’t even get … a call’
With a Republican in the White House and a GOP-run Senate, Cornyn and Cruz didn’t really need to seek input from Texas Democrats. Johnson, while saying she respects that the senators “are the senators,” fumed that “we didn’t even get a question or a call” over the last four years.
But the bigger Democratic complaint has centered on why Trump had so many vacancies to fill in the first place.
Democrats have long ripped Republicans for grinding judicial confirmations to a crawl after the GOP won the Senate in the latter stages of former President Barack Obama’s tenure. Trump often reveled in the vacancies he inherited, much to the chagrin of liberals in Texas and beyond.
“While we were able to find some very good judges, overall I don’t think the process worked very well,” said Christopher Kang, who oversaw the judicial nomination process under Obama. “Sens. Cornyn and Cruz were very challenging to work with, were very slow to work with.”
Nominations, at the least, were stalled amid a partisan power struggle, discouraging some well-qualified candidates from slogging through a years-long ordeal, said Paul Coggins, a Dallas Democrat and former U.S. attorney for the Northern District of Texas.
“During the Obama years, a state like Texas got its appointees on board really late,” said Coggins, who served as a U.S. attorney under former President Bill Clinton. “If you’re a state like New York, where you have two Democratic senators, it happens real fast.”
Republicans have rejected that critique, accusing Obama of not making judicial nominations enough of a priority. San Antonio attorney David Prichard, who leads Cornyn and Cruz’s judicial evaluation panel, disputed the notion that the Texas senators held up anything.
“Different administrations have a different emphasis,” he said, comparing Trump, Obama and former President George W. Bush. “Trump’s White House counsel’s office was very aggressive. … The Obama administration? Not so much. The Bush administration? Somewhere in between.”
Prichard, seeking to downplay the idea of partisan rancor, also highlighted the fact that at least three Texas judges nominated under Obama — including district court judges Karen Scholer and Wes Hendrix in North Texas — were re-nominated under Trump and ultimately confirmed.
“Both of these senators understand how important it is to fill these benches,” he said.
That history still looms over the process, which will soon kick into gear if more federal judges announce their retirements, as experts expect, now that there’s a new commander in chief.
Johnson, the dean of the Texas congressional delegation, said she’s reaching out to other Texas Democrats, along with other stakeholders, to come up with a list of potential prosecutors and judges to recommend to Biden and to discuss with Cornyn and Cruz.
The White House, asked to comment, deferred to the U.S. Justice Department, which didn’t respond to a request for comment.
Bipartisan approach
Skaggs, the Cruz spokeswoman, said the two Texas senators “have successfully used a bipartisan committee to vet candidates through both the Obama and Trump administrations and will continue to do so under the Biden administration.”
(The senators haven’t released an updated list of who serves on their Federal Judicial Evaluation Committee since 2013. The vast majority of the panel then were GOP donors; some have since been recommended by the panel — and then confirmed — to judgeships or U.S. attorney postings.)
It’s unclear how those parallel efforts will mesh.
Texas’s GOP senators have indeed teamed up in years past with the state’s Democratic representatives, including Johnson, to deal with judicial nominations. But there are mixed feelings over how that worked, and, in any case, the process wasn’t always so polarizing.
Coggins, who served on the senators’ judicial evaluation panel until 2013, recalled that his nomination to serve as U.S. attorney in the early 1990s was placed on the Senate floor by Hutchison and Gramm, the Texas GOP senators at that time, without fanfare or acrimony.
“She basically said to me, ‘Are you going to run a non-partisan office?’” Coggins said of his meeting with Hutchison. “I said, ‘Absolutely.’ She said, ‘That’s good enough for me.’”
In today’s era of hyper-partisanship, the discourse could depend on the fate of so-called “blue slips.” Those are actual slips of blue paper — quirks of the tradition-laden Senate — that senators turn in to leadership to give their blessing to judicial candidates in their home states.
Senate leaders in the Obama era required both home-state senators to return positive blue slips to move forward for district and circuit judges. Republicans, in the Trump years, removed that standard for circuit courts, allowing candidates to move forward over Democratic objections.
Some conservatives worry that Democrats may now eliminate the blue-slip requirements for district courts, too, effectively allowing senators like Cruz and Cornyn to be bypassed.
“My hope is that the longstanding, historical practices of negotiation between the White House and the senators for a specific state will continue with this new administration,” said Rob Henneke, general counsel for the Texas Public Policy Foundation.
Durbin, the new Senate Judiciary chairman, plans to keep the setup that Republicans instituted in recent years, Politico reported, though his approach could change if nominations get jammed. Biden also remains a wildcard, given that the president is a Senate institutionalist and a former Senate Judiciary chairman who’s known to revere the chamber’s traditions and processes.
But some Democrats are pushing for bold action on the judicial front.
“We’re not a place anymore where Ted Cruz should have a veto over who President Biden might choose to be a lifetime judge in Texas,” said Kang, who’s the cofounder of Demand Justice, a progressive group focused on judicial nominations.
Coggins, while noting that Biden “probably accords a lot of deference to the senators,” said that “if times have changed, they need to change with times.” And “if it’s slow-walked by the senators” in Texas, he said, “I would hope the administration takes that into account.”
