Nope. Well, not if you live in the Fifth Circuit Court of Appeals, the federal appellate circuit that includes Mississippi, Louisiana, and – yes – Texas. As we've reported before, the Fifth Circuit, and Texas, suffers from an inordinate number of vacancies in the federal bench. The federal appeals court here has two vacancies – one since February of last year, and one since August of last year. At the trial court level, the court where most people turn to justice first, and the last court most litigants actually see, the situation is even more dire. The Eastern District of Texas has two vacancies, the Southern District of Texas (Houston) has three vacancies, the Northern District of Texas (Dallas/Fort Worth) has one more vacancy cropping up July 3, and the Western District of Texas (Austin) has one – open since November 2008. The tallies from around the rest of the circuit can be viewed here. You may remember that a few weeks ago, Texas Senator John Cornyn tried to blame President Obama for the vacant seats until Senators Sheldon Whitehouse of Rhode Island and Patrick Leahy of Vermont administered a sharp leash correction with Leahy reminding everyone:
“Based on 38 years experience here, every judgeship I've seen come through this committee during that time has followed recommendations by the senators from the state,” Leahy said. “You have to have recommendations from the senators[.]”
In a new development, however, and in a game of six degrees of blogosphere, New York magazine is reporting that The New York Times is reporting that President Obama, while not immediately addressing the problem in Texas, is addressing the problem in the Circuit Court of Appeals for the District of Columbia – the federal appeals court in Washington, D.C. – and the second most important federal court, right after the U.S. Supreme Court.
Perhaps emboldened by the recent confirmation of the unassailable Sri Srinivasan to the D.C. Court, the president has decided to nominate three more judges to fill vacant seats on the D.C. Court. The New American is reporting that “Srinivasan's confirmation brings the D.C. Circuit Court to four Democratic and four Republican appointees. If Obama's new nominees were to be approved, the court would likely begin to lean Left.”
The New American story goes on to quote Senate Minority Leader Mitch McConnell saying, “The whole purpose here is to stack the court. So the real issue here, I guess, is he disagrees with the rulings of the D.C. Circuit.”
Yes, Mitch, and we're shocked – SHOCKED – to learn that there's gambling in this establishment.
But the issue may very well be something much larger. For months now, we've decried the gaping holes in the federal bench. The problem is as fundamental as the maxim “justice delayed is justice denied.” Mere access to the courts may now be not just an issue itself, but a bargaining chip in determining the shape of Obama's legacy.
Jonathan Chait of New York magazine wrote Tuesday that Obama's nomination of three candidates to the court at once forces Senate Republicans to accept the candidates, thereby giving Obama the liberal-leaning D.C. federal appeals court he desires, or they must block the candidates on the basis of “extraordinary circumstances.” Because such an objection (particularly in the case of three candidates at the same time) borders on the absurd, Senator Harry Reid would have the necessary justification to invoke the nuclear option and change Senate rules to break the filibuster. This would clear the way for Obama to not only get his judges confirmed but also get confirmations to the Treasury, Commerce, and other departments, and even to the Consumer Financial Protection Bureau, the brainchild of another notable – Senator Elizabeth Warren.