| Even though it has only been a few weeks since Democrat Barack Obama became president-elect, lawyers already are discussing how he may change the selection process for U.S. attorneys and federal trial judges in Texas.
As president, Obama likely will rely heavily on the Texas Democratic congressional delegation to make his selections for U.S. attorneys and U.S. district judges, three lawyers familiar with the process say.
The U.S. Senate has an advice and consent role in all of the president's appointments and votes on whether to confirm them. Because Texas' two U.S. senators — Kay Bailey Hutchison and John Cornyn — are Republicans, President George W. Bush relied heavily on their suggestions for filling U.S. attorney, U.S. district judge and U.S. marshal positions in Texas.
In turn, Hutchison and Cornyn vetted potential candidates with help from the Federal Judicial Evaluation Committee, a committee set up in 1986 by then-U.S. Sen. Phil Gramm, R-Texas, to screen applicants. That committee is headed by Dan Hedges, a partner in Houston's Porter & Hedges, and is comprised of 35 bipartisan Texas lawyers.
But Hutchison and Cornyn's roles in choosing nominees may change when a Democratic president moves into the White House in January.
Because U.S. attorneys serve at the will of the president, and the opposite party's appointees traditionally leave their posts when a new administration takes over, U.S. attorneys tend to be some of the first state-specific appointments a president makes.
Also, there soon will be three U.S. district judge vacancies to fill in Texas: W. Royal Furgeson Jr. of San Antonio is taking senior status on Nov. 30, David Briones of El Paso is taking senior status on Feb. 26, 2009, and George Kazan of Laredo is taking senior status on May 31, 2009.
But it is rare for a president to fill judicial vacancies during the final months of his term in office. Since U.S. district judges serve for life, it often takes longer for those nominees to make it through the confirmation process in the Senate because of the extensive vetting required, including U.S. Department of Justice background checks.
Nonetheless, Hutchison and Cornyn dispatched an open letter to state and local bar associations on Oct. 17 seeking candidates to fill the upcoming federal judicial vacancies. "As U.S. Senators, we have a great honor in helping the President select the best candidates as his nominee for these important positions in Texas," Cornyn and Hutchison wrote.
"I think the letter was premature. I don't know if Cornyn and Hutchison will have that much say now, because they are Republicans," Briones says. Appointed to the bench in 1994 by then-President Bill Clinton, Briones announced in September that he plans to move to senior status on his 66th birthday.
Furgeson, a 1994 Clinton appointee, says, "My quote is everybody has to do what everybody has to do. If the senators want to deal with the matter expeditiously, more power to them. If they put nominations up and the new President Obama wants to put them through, more power to him."
Tina Gray, Cornyn's press secretary, says since the judicial confirmation process takes time, the senators "wanted to get the ball rolling sooner rather than later. The three judges are taking senior status at different times, so they [the senators] decided to initiate the process all at once. . . . Cornyn doesn't want these three vacancies to remain open and the workload and backlog to accrue, so starting the bipartisan committee review process was the responsible thing to do."
Now Hutchison and Cornyn's influence over the Texas appointments most likely will be through what is called the "blue slip" process, a tradition in which the home-state senators send the Senate Judiciary Committee written notice as to whether they have a favorable or unfavorable opinion of a nominee. Cornyn sits on the committee, which rarely green-lights a nominee without the approval of the senators from the nominee's state.
During the Clinton administration, the White House consulted with the Texas Democratic congressional delegation in the U.S. House of Representatives before making appointments in the state.
Amy Brundage, a spokeswoman for Obama's transition staff, declines to comment at this early stage on how the president-elect will nominate U.S. attorneys and U.S. district judges.
But U.S. Rep. Charlie Gonzalez, D-San Antonio, expects Obama will consult the Texas Democratic congressional delegation about Texas appointments just as Clinton did as president.
In fact, Obama told members of the Congressional Hispanic Caucus during a June meeting that he will rely heavily on Democratic congressional members to help select nominees in states that have two Republican U.S. senators, says Gonzalez, who attended the meeting.
"It's my understanding that President-Elect Obama will follow the procedures that we had in the past and that is he will follow the advice of the Texas Democratic congressional delegation," Gonzalez says.
The Texas Democratic congressional delegation will meet and consult with congressional Democrats who represent that district about possible candidates, Gonzalez says. "It just makes common sense. And we're getting inquiries from all sorts of people that are interested. And the only advice we're giving is there will be a process put in place and to contact us. We want to get the very best people in office."
The most senior member of the delegation, U.S. Rep. Solomon Ortiz, D-Corpus Christi, will be the liaison between the White House and the delegation about the selection of candidates, says U.S. Rep. Gene Green, D-Houston.
"He's got sway over the whole state," Green says of Ortiz.
Specifically, Green says, Ortiz will call a meeting of delegation members who represent the district where an appointment is to be made to review and select a candidate. In the Eastern District of Texas, which has no Democratic member, Ortiz will call a meeting of the entire 12-member delegation to consider candidates for positions in that district, Green says.
Ortiz did not return a telephone call seeking comment.
Green says members of Congress often consult with lawyers from their home districts about potential candidates. And delegation meetings about which candidate should be selected don't always go smoothly, he says.
"There have been controversies in the past," Green says. "[W]e work each other, and we say, 'I have this candidate, and he's much better.' . . . It comes down to the majority vote."
Ultimately, it's the White House's decision on whom to appoint, Gonzalez says. Given the recent controversy in which nine U.S. attorneys were fired during the Bush administration — allegedly in large part for political reasons — Gonzalez expects Obama to place a higher priority on a candidate's experience, rather than his or her politics.
"He is results-oriented in that he wants the very best people there. And the political considerations are not going to be there. There will be no loyalty oaths signed in blood," Gonzalez says. "It's refreshing; it's wonderful."
Hedges says he does not know what role his Federal Judicial Evaluation Committee will play in the selection process after Obama takes office on Jan. 20.
During the Clinton administration, the committee still met, he says. "But the committee only met to review people who had already been named as nominees," Hedges says. Each of the committee members communicated their impressions of that nominee to the senators individually and did not take a vote on whether to bless a nominee, Hedges adds.
