While President Barack Obama has appointed six U.S. district court judges in Texas, he has yet to place a jurist from the Lone Star State on the 5th U.S. Circuit Court of Appeals.
That has lawyers talking about several Texans the White House may nominate to sit on the federal appeals court serving Texas, Louisiana and Mississippi.
Currently, there are two vacancies on the 17-member court designated for Texas judges: the seats held by Fortunato "Pete" Benavides of Austin and Emilio Garza of San Antonio, both of whom took senior status last year. And six more 5th Circuit judges, including three Texans, are currently eligible for senior status but haven’t taken that step, potentially giving the Democratic president the chance to appoint a number of jurists to the traditionally conservative court.
While Obama has not officially announced his choices to replace Benavides and Garza, the White House currently is considering elevating at least two Texas judges to the 5th Circuit, according to two well-placed attorneys who request anonymity. The potential candidates include U.S. District Judge Gregg Costa of Galveston and Gina Benavides, a justice on Corpus Christi’s 13th Court of Appeals.
A White House spokesman did not return a call for comment. Costa and Gina Benavides decline comment.
Costa is a 1999 graduate of the University of Texas School of Law who clerked for late U.S. Supreme Court Justice William Rehnquist from 2001 to 2002.
Costa later served as an assistant U.S. attorney in the Southern District of Texas where he gained recognition for prosecuting R. Allen Stanford, former chairman of Stanford Financial Group of Houston. Stanford was found guilty in March 2012 of 13 of 14 criminal counts against him in connection with a conspiracy to defraud investors who bought about $7 billion in certificates of deposit sold through Stanford International Bank. He has appealed his conviction to the 5th Circuit.
Obama nominated Costa to the district court bench in 2012 and the U.S. Senate confirmed him in April 2012.
Benavides is a 1988 graduate of the University of Houston Law Center. She began her legal career as a litigator at the Adams & Graham Law Firm in Harlingen, where she primarily defended companies against toxic tort, product liability, commercial litigation and personal injury cases for 12 years. She later joined Gonzalez & Associates in McAllen as a plaintiff’s lawyer.
Voters first elected her as a Democrat to the 13th Court in 2006, and she has authored more than 530 opinions during her six-year term. In 2007, she was named "Latina Judge of the Year" by the National Hispanic Bar Association.
Another judge that is interested in seeking a spot on the 5th Circuit is U.S. District Judge Phil Martinez of El Paso, according to three attorneys who spoke on condition of anonymity. Martinez declines comment.
Martinez is 1982 graduate of Harvard Law School. He was elected as a Democrat to El Paso’s County Court-at-Law No. 1 and later to the 327th District Court. In 2001, then-President George W. Bush appointed Martinez to the U.S. District Court bench in El Paso, making him one of the only Democrats the Republican president appointed to the bench. Like other El Paso federal judges burdened with drugs and immigration cases, Martinez currently hears a docket that is nearly 90 percent criminal.
Legal Eagle Eyes
Before any aspiring Texan Democrats can be seated on the 5th Circuit, they must meet the approval of Texas’ Republican U.S. Senators John Cornyn and Ted Cruz. The U.S. Senate has the "advice and consent" role of reviewing all of the presidents’ judicial nominations.
Cornyn and Cruz have even more control over Texas’ 5th Circuit nominees though 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. Additionally, Cornyn and Cruz are members of the Senate Judiciary Committee, which rarely green-lights a nominee without the approval of the senators from the nominee’s state.
Cornyn says he and Cruz plan to appoint a bipartisan committee of attorneys to evaluate all of the president’s judicial nominees in Texas.
"We’re very close to announcing that group of Texans," Cornyn says. "I think it’s a good idea no matter who’s in the White House."
Cruz did not return a call seeking comment.
Given the senators’ professional backgrounds, he and Cornyn are expected to give especially close scrutiny to any 5th Circuit nominee.
Cornyn formerly served as the Texas attorney general, Texas Supreme Court justice and as a Bexar County district judge.
Cruz is the former solicitor general of Texas and was an appellate partner in the Houston office of Morgan Lewis & Bockius before voters chose him for the Senate last year.
The two senators already have showed a willingness to vote against Obama nominees, most notably in January, when both were two of the three Republican senators to oppose the nomination of former U.S. Sen. John Kerry, D-Mass, during the floor vote for his confirmation as secretary of state.
But Cornyn says it is possible to find common ground with the president in supporting his Texas nominees to the 5th Circuit.
"Absolutely. We’ve had a number of the president’s nominees that have gone through the Federal Judicial Evaluation Committee that I’ve supported," Cornyn says. "I see this as a cooperative, not an adversarial, process with the White House."
Appellate lawyer and Dykema Gossett member David Schenck of Dallas, who clerked for late 5th Circuit Chief Judge Henry Politz, expects that any 5th Circuit nominee will not have an easy ride through the Senate confirmation process.
"It’s difficult, because it’s supposed to be difficult, constitutionally," Schenck says of the process of selecting judges who serve for life. "This is not like a toll-collector appointment."
Schenck, who campaigned for Republican presidential candidate John McCain in 2008, has some suggestions for the kind of Democratic federal appellate court candidates who might appeal to Texas’ GOP senators.
"If I were advising the Democrats, I’d be looking for a law-and-order, no-nonsense, fair-minded person," Schenck says.
He adds that any candidate likely will have a significant legal career that makes him or her eligible for a federal appellate court.
"By and large what you are looking for is a body of work that suggests that you are dealing with a competent, impartial and reliable person for lifetime tenure on a very important court. And that kind of rigor and certainty has served the 5th Circuit very well," Schenck says.
Recent history has shown that 5th Circuit nominees from Texas can run into trouble when they are nominated by a Democratic president. No one knows that better than Jorge Rangel, a lawyer with Corpus Christi’s The Rangel Law Firm.
Then-President Bill Clinton nominated him to the 5th Circuit in 1997, but Rangel waited fruitlessly for two years to receive a hearing from the Senate Judiciary Committee. Rangel ultimately withdrew his nomination for the seat once held by the late Will Garwood.
"And ultimately that seat remained vacant for seven years," says Rangel, who added that he declined to accept new cases in private practice and had to dissolve his law partnership while he waited for a Senate committee hearing.
Other nominees also waited for a hearing, including El Paso attorney Enrique Moreno, another Clinton nominee who also ultimately withdrew his nomination.
President George W. Bush eventually filled that 5th Circuit seat, appointing Texas Supreme Court Justice Pricilla Owen. She also waited more than a year for a Senate hearing.
Rangel went to bat for the Republican and fellow Texan, sending the Senate a letter advocating that Owen get a hearing. "I wrote and said, ‘This has to stop,’" says Rangel. "And ultimately she did. Pricilla Owen eventually got that seat. I wrote a letter saying, ‘Give her a vote.’ "
Senior U.S. District Judge David Briones of El Paso says he’s rooting for his colleague Martinez to get a spot on the 5th Circuit for a variety of reasons, including that a border district judge has never sat on the federal appeals court.
"He’d be a damn good choice. And we’ve never had one from El Paso," Briones says. "We’re due, quite frankly."