How to Secede From the Union, One Judicial Vacancy at a Time

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http://www.theatlantic.com/politics/archive/2014/04/how-to-secede-from-the-union-one-judicial-vacancy-at-a-time/360207/

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A federal courthouse in San Antonio, part of the Western District of Texas (Eric Gay/Associated Press)

Secession can come in many forms—just ask anyone in Texas who cares to discuss the issue with you. One particularly effective strain currently wending its way through America has been largely ignored by reporters, political analysts, and legal scholars, even though it's a bipartisan problem within the federal government itself that undermines the rule of law and hinders the lives of millions of citizens.

Call it secession by attrition. Some Republican senators and a few Democrats as well are starving the federal courts of the trial judges they need to serve the basic legal needs of the litigants who come to court each year seeking redress of their grievances. One federal-trial seat in Texas has been vacant for 1,951 days, to give just one example. The absence of these judges, in one district after another around the country, has created a continuing vacuum of federal authority that is a kind of secession, because federal law without judges to impose it in a timely way is no federal law at all.

The absence of these judges means that cases of all types cannot be resolved in a timely fashion. It means a form of lawlessness. A recent study from the Center for American Progress identified a backlog of more than 12,000 federal cases exists in Texas alone because the two current senators there, both conservative Republicans and ardent foes of the Obama Administration's legal views, have slow-walked trial judge nominations.

This is not the familiar narrative about judicial candidates where Republican intransigence in the Senate is weighed against the slow pace of White House nominations. Whereas judicial vacancies decreased both during the Clinton and George W. Bush Administrations—especially the latter—they have increased during the Obama Administration.