Aspirants to Texas’ many vacant federal benches should get to know David Prichard, a partner in San Antonio’s Prichard Hawkins McFarland & Young. U.S. Senators John Cornyn and Ted Cruz last month named him to head their bipartisan Federal Judicial Evaluation Committee, which screens nominees for federal judicial and U.S. attorney vacancies inside the Lone Star State. Texas Lawyer senior reporter John Council sat down with Prichard in the Alamo City to discuss how politics affects the committee recommendations, what law practice areas his colleagues could view negatively and whether anyone ever will fill a long-vacant bench in San Antonio. Answers have been edited for length and style.
John Council, senior reporter, Texas Lawyer, Dallas: You go way back in San Antonio legal circles, particularly with a former litigator and now U.S. senator named John Cornyn. Is it safe to say you have Texas’ senior senator’s ear when it comes to who should sit as a federal judge inside our state?
David Prichard, chairman, Federal Judicial Evaluation Committee, and partner, Prichard Hawkins McFarland & Young, San Antonio: I would say I don’t have his ear. He’s way above my pay grade, but he’s very much interested in this process, and he’s a strong believer in the federal judicial evaluation committee. So, he and Sen. Cruz asked me to chair, after my 11 years of service. I was honored to do so. So, it primarily works through his staff; it’s not me calling him and talking directly to him. His staff is very involved, as will be Sen. Cruz’s. So, it’s primarily on a staff level.
TL: Texas’ new junior Senator Ted Cruz is obviously not John Cornyn. Have you had any indication that he may have a different view of who is qualified to serve as a judge with a lifetime appointment in Texas?
Prichard: None whatsoever. But I’m enthusiastic that Sen. Cruz comes with a wealth of knowledge for our judiciary and for the lawyers and the Bar of the State of Texas. Obviously, that’s been a big part of his life, so I think he’s going to be a big complement to Sen. Cornyn, so I’m looking forward to that.
TL: Partisanship seems to be at an all-time high in the U.S. Senate. For the judicial evaluation committee’s purposes, does partisanship get left at the door when you consider a federal judicial candidate’s qualifications?
Prichard: Historically, it has. I hope it’s going to continue. The people that I’ve worked with and the committee members — although I may know some as Republicans or some as Democrats — we seem to reach a real consensus on who we see as the best people available for very important jobs. So, historically, under the leadership of Dan Hedges [the committee's former chairman], there’s been very little partisanship.
TL: The makeup of the long-standing committee you now head has changed significantly. Many of the members are well known to Texas lawyers. Should Texas lawyers be concerned that some of the members of the committee represent specific business interests and advocacy groups, which could influence the kind of candidates the committee recommends?
Prichard: I don’t think so. I think this is a real good development. I think the senators have worked hard to get a diverse group of people — some of whom, as you say, have business interests, some of whom may be advocacy group folks, we have a district court judge — I think we have a strong gender and ethnic makeup that I’m thrilled about, and I think the senators and their staffs worked real hard to put together a true bipartisan group.
TL: Which brings me to my next question: Does diversity play a role in whom your committee recommends to the senators?
Prichard: I think diversity is a factor that is taken into consideration. I think the senators’ overriding goal is to get the best and the brightest Texans for these benches, and that’s what they’ve always told us. We’ve been very successful at getting top-quality people who do happen to be very diverse in their interests and their ethnicity and their gender. So, I think that this committee has a wonderful history of reaching out and getting the very best, who also happen to be diverse.
TL: I’ve noticed in recent years many of the Texas candidates your committee has recommended have come from either a state trial bench or were sitting U.S. magistrate judges. Why is that?
Prichard: I think two reasons. One — because our federal benches are very busy, and I think one of the things we may have to sacrifice is the on-the-job training — so, I think we kind of look for people who may have some experience that can be of immediate help to our brethren that are working in the federal courts today. No. 2 is that people who are on a bench right now have an opportunity to show lawyers, litigants how they can be fair and impartial, which I think is a big, important feature of being a good federal judge. So, if they have that track record, I think that could transfer over from either the state court or as a magistrate judge into being a quality federal judge. So, it’s not a necessarily a criteria, but it is a factor that we can look at. And people would have a record of how they are treating lawyers that appear before them. How do they treat the litigants that appear before them? Do they have an open mind when it comes to prosecutors versus the defense, a plaintiff versus a defendant in a civil case? If they’ve got a pre-existing history of an open mind, I think that’s a factor in their favor.
TL: Is there anything about a judicial candidate’s career — and, more specifically, the type of law they practice or the kind of cases they handle — that could been seen as a negative by the evaluation committee?
Prichard: Really good question. Well, I’m going to give you a David Prichard bias, and that is: I’ve been primarily a civil practitioner in the 35 years I’ve been practicing, and I recognize that the criminal work that they [U.S. District judges] do takes priority over the civil cases — unfortunately, for me and people who do what I do. I have been told, although I don’t know it firsthand, but that the criminal procedure and a criminal docket — it’s easier to learn the criminal side of things than it is for people to pick up a civil docket if they have no civil experience. People have told me that; I don’t know that it’s true. I try to not bring that in as a real significant factor. But it may be something that I look at: if they have any civil experience at all. So, if they don’t, it may be that we raise it and talk to them about it. On the other hand, maybe depending on where the bench is, it may be very, very heavily criminal or immigration or something, as opposed to other places in the state that have a more diverse civil practice. So, we take that into consideration, too. I would say, again, that the committee does a pretty good, holistic view of all the candidates.
TL: Your home federal jurisdiction, the San Antonio Division of the Western District of Texas, has been down a federal judge for about five years. The Sherman Division in the Eastern District of Texas has been without a full-time judge for even longer. Why do you think it is taking so long to get those benches filled?
Prichard: You’re asking really good, hard questions. I don’t have the recollection that the Sherman bench has been vacant as long as the San Antonio bench. I could be wrong about that.
TL: It’s been awhile.
Prichard: It has been awhile. The San Antonio bench — I think we’ve had two sets of interviews. For various reasons, some of the candidates have not been acceptable to the senior participants in the decision-making, either from the White House or from the Senate side. But I’m proud of the fact that this committee has moved people in and out, so we’re not responsible for the delay. Now, there are commentators, and I’ve read them, that believe — by having an FJEC [Federal Judicial Evaluation Committee] committee, they think we are a delay. And I challenge those people, and I challenge them strongly, to find one example where this committee has been an impediment to moving people along. There are political considerations that we don’t get involved in. And we don’t pick judges; we make recommendations. And, so, there are activities that go on that are beyond what we do. To some extent it’s a political process, and we just have to live within that process.
TL: Your committee may soon be considering candidates for two of Texas’ seats on the 5th U.S. Circuit Court of Appeals. How does the committee’s role in reviewing appellate court nominees differ from reviewing district court candidates?
Prichard: Another good question, because this will be new for us. In the 11 years I was a member of the committee, we never did evaluations for the senators for 5th Circuit slots. I am led to believe that we may be asked to participate in that evaluation and provide some names. So, I don’t have any experience in it. But, because of the job a 5th Circuit judge would do, I think it’s going to open up the inquiries from our committee members to dig a little deeper and talk about writing experiences and talk about case interpretation perhaps a little more than we would for the Article III [trial court] benches. So, we look forward to that. I’m very excited about the possibility of working on 5th Circuit candidates. But we haven’t done it, so it’s a brave new world for us.
TL: Without naming any names, have you ever looked back at a judge you have previously recommended with regret?
Prichard: No. Some of the judges that have been confirmed that I’ve had cases before have torpedoed me [laughing] but which tells me that they are fair, open-minded and objective judges. And frankly, as a member of the committee since late 2002, I am very, very proud of the fact that we’ve gotten judges who come from different administrations with different points of view. But I’m proud of the group as a whole. Some I don’t really know, or I haven’t practiced before, but the ones that I have I’m pretty darn proud of what they’ve brought to our court system. I think the committee can be very proud of the people they’ve recommended to the senators and the White House. I think, as a part of the overall group and a part of the overall structure of our benches, I think the FJEC group is a real plus, because it gives us another check-and-balance to make sure we do get the best of the best. Because, goodness knows, the White House has a lot on its plate, the senators have a lot on their plate, and it’s just one more opportunity for us to have a good look-see. A lot of the people on this committee take their work real seriously and do a lot of due diligence on potential candidates. So, on thewhole, I’m proud. I may a little more proud of some than others, but as a group I think they’re an outstanding group.