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judicial nominations

Commissioners Court replaces Judge McLeod

Unfortunate, but understandable.

Judge William McLeod

A divided Harris County Commissioners Court declined to give County Court At Law Judge Bill McLeod a reprieve Tuesday after he inadvertently resigned last week, opting instead to appoint a replacement.

Harris County Judge Lina Hidalgo said letting McLeod remain as a holdover judge until a special election for the seat in 2020 was too risky, since he almost would certainly have to recuse himself from cases to which the county was a party, as Commissioners Court would have the power to remove him at any time.

Instead, the court voted 3 to 2 to appoint Houston lawyer Lesley Briones to hold the seat through next year, on the recommendation of Precinct 2 Commissioner Adrian Garcia.

“I think voters deserve a judge who can be absolutely independent, as he was elected to be,” Hidalgo said. “This would put us in the untenable position that he would no longer be an unbiased person, because he would be beholden to Commissioners Court.”

Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle voted against the appointment. Cagle told Briones he could not support her since the nomination was made just minutes earlier and he did not have a chance to review her qualifications.

Briones, a Yale Law School graduate and general counsel to the Laura and John Arnold Foundation until December, accepted the appointment on the spot.

“I have deep respect for the law and I respect that you made a hard decision, and I respect the consternation in this room,” Briones said. “But know that I will work extremely hard for everyone.”

See here and here for the background. There were some good legal arguments in favor of retaining Judge McLeod, while Judge Hidalgo’s point is worth taking seriously as well. In the end, I didn’t have a strong opinion one way or the other; I think either decision was defensible. JUst a couple of thoughts to keep in mind as we go forward:

– McLeod’s point that the state constitution is incredibly long and arcane is unquestionably true. It’s also kind of disingenuous coming from a judge. More to the point, this is why potential candidates should talk to a political professional or two before making any public statements about running for office, because there are various weird rules related to candidacy that are easy to stumble over if you don’t know what you’re doing. I can think of a dozen people off the top of my head who could have pointed this out to McLeod before he filed his designation of treasurer. You gotta do your due diligence.

– Not to belabor the point, but there’s a reason why basically nobody had been felled by this problem before. As I said in my first post, nearly every story about then-Sheriff Adrian Garcia’s rumored candidacy for Mayor was accompanied by a discussion of how he couldn’t say anything without triggering the resign-to-run provision. Sheriff isn’t judge, but in this case they’re both county positions. One might well wonder if that provision applied to one job, would it apply to another?

– All that said, let’s not get too high and mighty at Bill McLeod’s expense. Yes, this was a dumb and avoidable mistake, but it’s not like this particular cul-de-sac of our word salad that is the state constitution was a cornerstone of our inviolable values as a state. County court judges have to resign to run for another office, but district court judges and appeals court judges don’t. All five Democrats who ran for statewide judicial positions last year were sitting on a bench while running for something else, and last I checked our state didn’t collapse. The fact that Bill McLeod had to resign is a quirk and not a principle, and it’s at least as dumb as McLeod’s unfortunate action. I’m sorry this happened to him. I’m sure we’ll all take the lesson to check and doublecheck whether “resign to run” applies to whatever office one holds before stating an intention to seek another, but maybe we should also take the lesson that these same rules are arbitrary and ought to be reviewed to see if they still make sense. Campos has more.

Some pushback on Jeff Mateer

A small bit of sanity.

Even as President Donald Trump rushes to fill federal judge openings across the nation, a top Senate Republican is urging the White House to put the brakes on an outspoken nominee from Texas.

Iowa Republican Chuck Grassley, chairman of the Senate Judiciary Committee, said Tuesday that he told Trump to “reconsider” two controversial judicial nominees:

Jeff Mateer of Texas and Brett Talley of Alabama.

“I’ve advised the White House they ought to reconsider,” Grassley told CNN. “I would advise the White House not to proceed.”

Mateer, a top aide to Texas Attorney General Ken Paxton, was nominated by Trump to be federal judge in Texas. He has faced bipartisan criticism for a series of speeches in 2015 on homosexuality, including a reference to transgender children as part of “Satan’s plan.”

Talley, a Justice Department lawyer and candidate for a federal judge position in Alabama, has come under fire for urging readers in a 2013 blog post to join the National Rifle Association while attacking gun control legislation after the Sandy Hook Elementary School massacre as “the greatest attack on our constitutional freedoms in our lifetime.”

With no previous judicial experience, Talley became the third judicial nominee since 1989 to receive a unanimous rating of “not qualified” from the American Bar Association, a move that Republicans have decried as partisan.

See here for some background. That appeared on Tuesday, and by Wednesday Sen. Grassley had had enough.

The Senate Judiciary Committee’s top Republican said Wednesday that two of President Trump’s nominees for open seats on the federal bench will not be confirmed, just a day after urging the White House to “reconsider” them.

U.S. Sen. Charles E. Grassley, R-Iowa, said that based on his discussions with the White House, the nominations of Jeff Mateer and Brett Talley would not move forward through the confirmation process. The decision comes after reports that both nominees made public comments celebrating groups or policies that were discriminatory.

Good. Look, if you’re a Republican, surely you can see that you can do better than these two clowns. There are plenty of severely conservative potential judges out there who are also well-qualified for the job and are capable of acting like normal human beings. It’s really not much to ask, even from Donald Trump. Well, maybe it is too much to ask from Trump. In which case, voting losers like Mateer and Talley down might get the message across. Advise but don’t consent, in other words. Score one for a smidgeon of sanity.

Trump nominates two to the Fifth Circuit

This is why Republicans put aside their doubts to vote for Trump, and it’s why they stick with him. This is the prize they kept their eyes on, and it’s paying off for them bigtime.

Don Willett

President Donald Trump on Thursday said he is nominating two Texans to the 5th U.S. Circuit Court of Appeals: Texas Supreme Court Justice Don Willett and Dallas attorney James Ho.

“Both of these gentlemen, I think, will do an outstanding job,” U.S. Sen. John Cornyn, R-Texas, said during a conference call with reporters.

They would need to be confirmed by the Senate.

Willett, a well-known Twitter user, has served on the state Supreme Court since 2005. During the 2016 presidential race, Trump had named Willett as a potential choice for the U.S. Supreme Court.

Ho is the former solicitor general of Texas. He has also served as chief counsel for Cornyn.

[…]

Even after Thursday’s announcements, Trump has a host of vacancies left to fill in Texas. He has yet to fill two U.S. attorney positions, including the post in the Southern District, which is the busiest in the country. Lt. Gov. Dan Patrick’s son Ryan Patrick is rumored to be the president’s choice for that post.

Trump also has six federal district court seats to fill, several of which have been classified as judicial emergencies. One of those seats has been open since 2011.

Neil Gorsuch gets all the attention as a tainted selection that resulted from extreme partisan obstruction, but don’t overlook all those district court and appellate court positions that have been open for years, with our two Senators refusing to allow any Obama nominations to be considered, let alone voted on. Willett and Ho are the beneficiaries of this from a professional standpoint, but one young and reliably conservative guy in a robe is as good as any other. This isn’t about qualifications – Willett and Ho are perfectly credible choices – it’s about opportunity, and about partisan cohesion. Don Willett and James Ho will be affecting public policy way longer than Donald Trump will. The Chron has more.

As I said, Willett and Ho are qualified to be judges – they’re not who I’d pick, but they fall within accepted norms for the job. Some nominees do not, but it’s going to take recognition of that in the right places to keep them out.

Texas U.S. Sen. John Cornyn raised fresh doubts Thursday about the White House nomination of assistant state Attorney General Jeff Mateer to be a federal judge in Texas.

Mateer, in a pair of speeches in 2015, reportedly referred to the rights of transgender children as part of “Satan’s plan” and defended the controversial practice of “conversion therapy” for gays.

Cornyn, commenting publicly for the first time since Mateer’s speeches were unearthed this month by CNN, said the speeches apparently were not disclosed to him as they should have been under a screening process set up by him and Sen. Ted Cruz.

“We requested that sort of information about speeches and the like on his application,” said Cornyn, the No. 2 Republican in the Senate. “And to my knowledge there was no information given about those, so it’s fair to say I was surprised.”

[…]

Cornyn said Thursday that he is reevaluating Mateer’s nomination in light of the undisclosed speeches as well as other public utterances.

“I am evaluating that information, and I understand there may be even addition information other than that which has previously been disclosed,” he said in a conference call with Texas reporters.

Cornyn, formerly a Texas Supreme Court Justice, said there should be no “religious test” for judges. “But it is important,” he added, “that all of our judges be people who can administer equal justice under the law and can separate their personal views from their duties as a judge.”

He added: “Because the information had not been previously disclosed, we were not able to have that kind of conversation with Mr. Mateer, so we’ve got some work to do.”

Ted Cruz, of course, has no such qualms, because he’s Ted Cruz. Note that Cornyn has left himself a lot of wiggle room here. His primary concern here is that Mateer may have more such, let’s say “intemperate”, remarks in his past that he hasn’t told the likes of Cornyn about. Big John can handle a little gay-bashing, but he doesn’t like to be surprised. As long as Mateer makes a few perfunctory statements about how of course he believes in equal justice for all and would never ever ever treat anyone unfairly in his courtroom, and as long as no more embarrassing video turns up, Cornyn will be happy to support him. Eyes on the prize, you know.

Judgmental

The only bench this guy should be allowed on is a park bench.

I am staring INTO YOUR SOUL

Jeff Mateer, a high-ranking official in Texas Attorney General Ken Paxton’s office who President Donald Trump has nominated for a federal judgeship, said in speeches in 2015 that transgender children are part of “Satan’s plan” and argued same-sex marriage would open the floodgates for “disgusting” forms of marriage, according to CNN.

“In Colorado, a public school has been sued because a first grader and I forget the sex, she’s a girl who thinks she’s a boy or a boy who thinks she’s a girl, it’s probably that, a boy who thinks she’s a girl,” Mateer said in a May 2015 speech first reported by CNN, referencing a Colorado lawsuit that involved a transgender girl’s parents suing her school for prohibiting her from using the restroom she preferred. “I mean it just really shows you how Satan’s plan is working and the destruction that’s going on.”

In the same speech, Mateer also criticized the 2015 U.S. Supreme Court decision legalizing same-sex marriage as taking the nation back to a time of “debauchery.”

“I mean, it’s disgusting,” he said. “I’ve learned words I didn’t know. There are people who marry themselves. Somebody wanted to marry a tree. People marrying their pets. It’s just like — you know, you read the New Testament and you read about all the things and you think, ‘Oh, that’s not going on in our community.’ Oh yes it is. We’re going back to that time where debauchery rules.”

All righty then. Note that this wasn’t pulled out of an old email or a paper he wrote in college, it’s from a speech he made at a public event two years ago. Is there any reason to believe that Jeff Mateer would treat everyone who came before his court in a fair and impartial manner? Surely any LGBT person would have good cause to doubt that, but so would anyone who doesn’t share Mateer’s views on, well, pretty much anything. He’s made a career out of claiming that privileges people of his religious faith. “Travesty” is not a strong enough word for making this guy a visiting judge, much less giving him a lifetime appointment to a federal bench. Unfortunately, he’s far from the only such nominee, in Texas and all around the country. The Chron and the Current have more.

No, we shouldn’t have any kind of elections for SCOTUS justices

Your junior Senator, ladies and gentlemen.

Not Ted Cruz

Not Ted Cruz

Dismayed by a pair of Supreme Court decisions upholding Obamacare and gay marriage, Republican Ted Cruz presided over a packed Senate hearing Wednesday calling for judicial elections and term limits to rein in what he called “judicial tyranny” and “the abuse of judicial power.”

While term limits or recall elections for Supreme Court justices are considered a distant long-shot, both ideas have gained traction with some legal theorists – and especially with social conservatives who are a key part of Cruz’s strategy to win the 2016 GOP presidential nomination.

As chairman of a Judiciary subcommittee on the federal courts, Cruz took center stage in an afternoon hearing that aired a host of conservative grievances with recent high court decisions that have remade the political landscape on health care and same-sex marriage.

“So long as justices on the Court insist on behaving like politicians, acting like a political body, and making policy decisions instead of following the law, they should not expect to be exempt from the authority of the voters who disagree with their policy decisions,” Cruz said.

The idea of retention elections has been widely panned by critics on the left and right, many of whom fear it would politicize the highest echelon of the judicial branch and expose the justices to unseemly political campaigns.

Delaware U.S. Sen. Christopher Coons, the ranking Democrat on the panel, suggested that the proposal is an overreaction to a pair of court decisions that went against the views of conservatives.

“We cannot decry judicial activism and create a Constitution crisis every time that a big case comes out against us,” Coons said. “The Supreme Court has been a vital arbiter of political interests precisely because it is insulated by the vagaries of politics and political interests.”

Coons and other opponents of Cruz’s plan argued that the current Supreme Court has delivered a string of conservative victories on guns, voting rights and campaign spending limits.

I’ve said it before and I’ll say it again: For a guy that’s supposed to be so freaking smart, Ted Cruz sure says a lot of stupid things. Putting aside the obviously sore-lose-crybaby motivation for this proposal and the fact that the Founders intended Supreme Court justices to be above politics (hence the lifetime appointments; you’d think a self-styled “Constitutional conservative” would have some respect for that), electing Supreme Court justices is an objectively terrible idea. The public will be woefully under-informed about the candidates, who will necessarily be limited in what they can campaign on. All of the conflict-of-interest problems with judicial elections at lower levels will exist times a billion. And speaking of “billion”, the amount of super PAC/special interest money that would flood into these campaigns would be enough to choke a Koch brother. There’s just nothing to recommend this.

Now, some people have suggested perhaps limiting SCOTUS terms to something like 18 years, which would allow for regular turnover while still shielding the Justices from electoral politics. (Which is not to say they’re not themselves political, just that they could continue to make rulings without wondering about their existential future.) I could be persuaded to support such a plan, if I thought there was a chance it could be approved. But Cruz isn’t interested in improving anything other than his own side’s advantage. I suppose that much is smart, but so would be having a plan that had a chance of actually succeeding.

Al Bennett confirmed to federal district court

Great news.

Judge Al Bennett

After months of delay, a unanimous U.S. Senate on Monday confirmed Alfred Bennett to the United States District Court for the Southern District of Texas, cracking open slightly a national logjam of judicial nominations and a backlog of cases.

Bennett’s 95-0 vote, though welcomed by legal reformers, still leaves in limbo at least two other pending confirmation votes for Texas judges – a vestige of congressional gridlock despite assurances by Texas U.S. Sen. John Cornyn and other GOP leaders who had vowed to push for swift confirmation.

No final votes have been scheduled for Texas judges George Hanks Jr. and Jose Olvera Jr., although Senate aides said they could be confirmed in the coming weeks. Texas’ 11 federal judicial vacancies are the most of any state.

Bennett’s is the first judicial nomination to clear the Senate since Republicans took over in January.

[…]

None of the Texas judges are considered controversial. Originally nominated in September, they represent a diverse new generation of judges: Bennett and Hanks are black; Olvera is Latino.

During confirmation hearings in February all three won praise from Cornyn and fellow Republican Ted Cruz, the junior senator from Texas. At the time, Cornyn said he expected the three Texas judges to be confirmed expeditiously.

But the decision by Republican Majority Leader Mitch McConnell of Kentucky to hold back Senate votes on Olvera and Hanks has mystified court watchers.

“Majority Leader McConnell and Senator Charles Grassley, Chairman of the Senate Judiciary Committee, need to oil the judicial confirmation machinery they’ve allowed to rust over since they’ve taken control, and get the gears of justice moving efficiently again,” said Judith Schaeffer, vice president of the Constitutional Accountability Center.

Of the Lone Star state’s 11 federal judicial vacancies, nine are in district courts and two on the Fifth Circuit Court of Appeals, which reviews cases from Texas.

That is one-fifth of 55 total current vacancies nationwide, according to Glenn Sugameli, who tracks judicial appointments for Judging the Environment, a Defenders of Wildlife project. Meanwhile, the nation faces a record backlog of more than 330,000 civil cases.

I know Judge Bennett – in the Small World department, one of his cousins was a coworker of mine for many years – and he will be an excellent addition to the federal bench. He was first elected in 2008, so he’d have been on the ballot next fall. Greg Abbott will get to appoint his replacement (would that be his first?), so there will be a new Civil Court bench for Democrats to aim at. I’m guessing that will be a contested primary. Indeed, as of Tuesday afternoon former District Court Judge Dion Ramos, who was elected to complete a term on the 55th Civil Court bench in 2008 but then lost in 2010, has announced his intent to run for the 61st. I expect others will follow. Anyway, congratulations to Judge Al Bennett, a swell guy who truly deserves this appointment. May judges Hanks and Olvera join him soonest.

Three new judges coming

Nice.

Robert Pitman

Breaking a longstanding logjam, President Obama announced nominees for three vacant Texas federal court benches late Thursday.

If confirmed, U.S. Attorney Robert Pitman of San Antonio, Texarkana lawyer Robert Schroeder III, and Sherman Magistrate Judge Amos Mazzant III will all get lifetime jobs as U.S. district court judges.

“Any nominations are critically important, as Texas desperately needs to have as many of its nine district and two circuit vacancies filled,” said Carl Tobias, a University of Richmond law professor who tracks nominations. “The judges are overwhelmed by crushing case loads and too few judicial resources.”

Pitman’s appointment would be “historic,” Tobias added, because he would be the first openly gay federal judge in the state.

Pitman is used to breaking ground. He became Texas’ first openly gay U.S. attorney, and one of the first anywhere. Before his appointment in 2011 as the top federal prosecutor for the Western District of Texas, he served as a magistrate judge.

Pitman, nominated for a seat in San Antonio, earned his law degree from the University of Texas. If confirmed by the Senate, he will take the bench formerly filled by W. Royal Furgeson Jr., dean of the University of North Texas Dallas College of Law that is set to open this fall.

Furgeson, reached Thursday night, called him “an outstanding choice. His career covers a wide range of experience. At every juncture, he has performed brilliantly. He works hard. He is very balanced and has excellent temperament. And he is a very decent, honorable and humble person.”

To say the least, it has been a struggle to get judges – and for that matter, US Attorneys – nominated for Texas. President Obama got off to a slow start in making nominations overall, but the resistance he’s encountered has been a much bigger obstacle. I hope he can get this job finished before his term ends. In the meantime, congrats and best of luck with the confirmation process to all the nominees. PDiddie has more.

Let’s seat those judges

Traditionally, a President seeks input from a state’s Senators when filling federal court, US Attorney, and US Marshall openings. Also traditionally, when the President and both Senators from a given state are from opposite parties, the state’s Congressional delegation assumes that role. Here’s hoping that actually works here in Texas.

Democrats, with their party in control of the White House, want more input into selecting judges and U.S. attorneys in a system that has been dominated by Republicans for the past eight years.

“We have to be realistic,” said Rep. Solomon Ortiz, D-Corpus Christi, the state’s senior congressional Democrat. “Democrats won the election.”

Rep. Lloyd Doggett, D-Austin, the Democratic congressional delegation chairman, said the Republican senators may offer input, but House lawmakers will recommend candidates for nomination.

“Individuals seeking these positions must have the approval of the Texas Democratic delegation,” said Doggett.

A White House statement confirms the Texas Democratic delegation clout, but it also adds to the ambiguity of the process by saying the “Texas U.S. senators will be accorded a full opportunity to share their views about each candidate whom the president proposes to nominate.”

That led Republican Sens. John Cornyn and Kay Bailey Hutchison, to install their own Federal Judicial Evaluation Committee to screen applicants for judicial districts in the state. It’s the same committee used over the past decade, only the formerly all-Republican panel now has added Democrat members.

Cornyn said the committee process exists to ensure judicial candidates are “the very best lawyers in the state.” A member of the Senate Judiciary Committee, which conducts confirmation hearings on judicial nominees, Cornyn said he did not want the process “viewed as a partisan exercise. We want it to be a quality control exercise.”

Cornyn also warned that senators have the power to block any home state nominee to judicial posts — a process known in Senate parlance as rendering a “blue slip.”

I assume they refer to this largely female-free list. I’m happy to let Cornyn and Hutchison have some input, but I hope they’re grownup enough to realize that this isn’t all about them. The President can and should give priority to Democrats for these positions, and as long as the nominees are well qualified, I think our Senators should go along instead of playing partisan games. I don’t think that’s too much to ask. We did finally manage to get Justice Sonia Sotomayor approved, after all. Of course, that happened over Cornyn and Hutchison’s objections. That’s not an option here thanks to the blue slips, so we’ll have to see if they can play nice with everyone else.

Cornymandias

Look on his works, ye Mighty, and despair!

Texas Sen. John Cornyn is threatening “World War III” if Democrats try to seat Al Franken in the Senate before Norm Coleman can pursue his case through the federal courts.

Cornyn, the chairman of the National Republican Senatorial Committee, acknowledges that a federal challenge to November’s elections could take “years” to resolve. But he’s adamant that Coleman deserves that chance — even if it means Minnesota is short a senator for the duration.

This comes at the same time as Cornyn’s demand for a complete change in the district court nominations process to suit his whims. I just have one question about this: When exactly did the chairmanship of the NRSC become such a powerful position? I mean, who knew so much hung on his re-election last year?