Senators Consider Texas Nominees for Long-Vacant Judicial Seats

The five candidates to fill federal court seats in Texas promised the state's U.S. senators on Wednesday that if confirmed, they would steer clear of judicial activism.

The issue arose during a brief Washington, D.C., hearing of the U.S. Senate’s Judiciary Committee, which convened to consider the Obama administration’s nominees for federal district court seats. Critics say the unfilled judicial seats in Texas and other states have led to an unprecedented backlog in the federal courts system. 

Among the nominees were three candidates for the Northern District of Texas, one for the Western District of Texas and one for the Eastern District of Texas. The committee did not vote, and it is unclear when the nominees might be considered by the full Senate.

“I don’t believe a judge should ever, nor will I ever, I pledge to you, never to operate with judicial activism,” said U.S. Magistrate Judge Walter David Counts III, who is being considered for the Western District of Texas.

Counts was responding to a question U.S. Sen. Ted Cruz posed to the candidates about what a judge should and should not do. 

The term "judicial activism" has been used by Republicans to decry recent court decisions on issues like health care and marriage equality that critics said were partially due to some judges’ personal politics and preferences.  

The hearing came after legal scholars and analysts have accused Republican senators, including Sens. Cruz and John Cornyn of Texas of intentionally stalling several nominations. There are currently 10 federal district court vacancies in Texas, all of which are considered emergencies by the federal government. There are also two empty seats on the U.S. Court of Appeals for the 5th Circuit, which hears appeals from Texas.

U.S. Magistrate Judge E. Scott Frost, who is being considered for the Northern District of Texas, had an answer similar to Counts' to Cruz's question about what a judge should do.

“Impartially evaluate the facts without any reliance on our own opinions or biases and apply the rule of law to those facts,” he answered.

Added U.S. Magistrate Judge Irma Carrillo Ramirez, who is also a nominee for the Northern District courts: “I can say to you that I have endeavored over the past 14 years and will continue in my current job to endeavor to never allow my personal beliefs to influence my decision-making."

Cruz then asked the candidates to differentiate between activism and the proper role of a judge.

“It’s one thing to use a label but what’s the difference?” he asked.

“The proper role of a judge is to recognize that that judge serves an important but a limited role, and that role is to apply the law, not make the law,” said James Wesley Hendrix, an assistant U.S. attorney and the chief of the Appellate Division for the Northern District.

Karen Gren Scholer, a principal in the law firm of Carter Scholer Arnett Hamada & Mockler, PLLC, and a former state district judge from Dallas County, is a nominee for the Eastern District of Texas. Like her colleagues, she said her judicial philosophy is "strict adherence to the rule of law." 

Before handing the gavel over to Cruz, Cornyn applauded the nominees.

“I want to congratulate each one of you for getting this far in the process. As I said, it’s not an easy one. I’m sure you would agree," he said.

Although some analysts said Wednesday's hearing made progress toward possibly filling the outstanding vacancies, others wanted to see more action. In a written statement, Sen. Patrick Leahy, D-Vermont, called on Cornyn, who chaired the committee, to let the Senate move forward.

“The Republican Whip has said that he was ‘proud to recommend each of these well-qualified’ Texas nominees before us today,” Leahy said, referring to Cornyn's role in the Republican leadership. “With his support, I see no reason why we cannot do our jobs and move swiftly on confirming these five nominees and halve the vacancy rate on Texas’s district courts.”

Read more of the Tribune's coverage here:

• Texas has some of the busiest federal courts in the nation — and some of the most judicial vacancies.

• Leaders from state and national liberal organizations on Monday called on U.S. Sens. Ted Cruz and John Cornyn to increase efforts to fill nine vacant federal judgeships that impact Texas.