In the past three months, Gov. Greg Abbott’s appointments have included a new director of the Office of State-Federal Relations, a new chair of the Family and Protective Services Council, three Parks and Wildlife commissioners, several appellate court justices and two members of the Texas State Board of Acupuncture Examiners.
But in the months since Texas Supreme Court Justice Phil Johnson announced his retirement, Abbott has not named a successor to fill the vacancy on the state’s highest civil court. Friday marks three months since Johnson announced — just days after a slew of lower-court Republican justices lost their elections to Democrats in big city districts — that he would retire, effective Dec. 31, after 13 years on the high court’s bench.
That vacancy leaves the all-Republican court liable to split 4–4 — an impasse that might require the governor to appoint an interim judge as tiebreaker — and, perhaps more significantly, adds to the hefty workload of the eight justices sitting on the bench. Operating one member down could make it more difficult for the high court to clear its docket by the unofficial end-of-June deadline, a productivity marker that has been a priority for Chief Justice Nathan Hecht.
Hecht said the vacancy has yet to hurt the court’s workflow, though “eventually it might.” It’s not the first time the court has been down a justice, he noted, and Johnson worked to get out several opinions before retiring last year.
“It’s been weeks and months before,” Hecht said, “and it’s also been hours and days.”
If the governor’s office has been delayed in choosing a new judge, it hasn’t been for lack of candidates. Starting almost immediately after the midterm election that ousted 19 Republican incumbent justices from lower appellate courts, application forms have poured into the governor’s appointments office, totaling about two dozen by mid-January, according to public documents.
The applicants are district and appellate judges and attorneys at prominent law firms (and one university student who appears to have applied by mistake). Some applied within a week of losing their elections in November. Several are applying for the second time.
Many are members of the Federalist Society, a prominent conservative legal group. Their references include Harvard Law School professors, former statewide officials and U.S. Supreme Court Justice Clarence Thomas. They boast letters of recommendation from grassroots activists, local officials and sitting members of the U.S. Congress. One even had a friend write to Texas first lady Cecilia Abbott.
Some eyebrows went up in Texas judicial circles when the governor didn’t choose one of these plum picks as Johnson’s successor before January, when the Legislature was gaveled into session. Appointments made during a legislative session are subject to a different procedure; top judicial hopefuls have to appear before the Senate Nominations Committee and win confirmation from the full chamber before they can be sworn in. During the interim, the process is quieter; nominees can be sworn in and begin to serve before being confirmed. If they come up for election before a session starts, they can skirt the confirmation process entirely.
Nominees require a two-thirds vote in the Texas Senate. Abbott is all but certain to appoint a Republican — judges in Texas run in partisan elections — and the upper chamber has 19 Republicans, just shy of the 21 votes needed for confirmation. Just three of 18 appointments to the high court in the last 30 years have come during a legislative session, Hecht said. Fittingly, the most recent was Johnson, appointed in 2005.
Nominations are typically uncontroversial, but this year, a fight is brewing over David Whitley, Abbott’s nominee for secretary of state, who got a two-hour grilling at his hearing Thursday over the state’s botched attempt to run citizenship checks on nearly 100,000 Texas voters. A top judicial nominee could hand Senate Democrats a bargaining chip in the session’s more contentious debates over property taxes and school funding. Nominees who are not confirmed cannot serve.
The governor’s office did not return requests for comment on the vacancy. The appointee will serve through 2020, the end of Johnson's term.
Abbott, a former Supreme Court justice and Texas’ longest-serving attorney general, has a reputation for being influential on judicial appointments, including at the federal level. His first appointment to Texas’ high court was Justice Jimmy Blacklock, who previously served as the governor’s general counsel.
A months-long vacancy isn’t too unusual. Johnson, for example, was sworn in seven months after his predecessor resigned. But Abbott moved quicker on his one Supreme Court appointment so far. He announced his intention to nominate Blacklock well before Blacklock's predecessor, Don Willett, was confirmed to the U.S. 5th Circuit Court of Appeals. And Blacklock was sworn in the same day Willett took the oath for the federal appeals court, leaving the vacancy open for just minutes.
“Knowing the great quality of candidates, maybe [Abbott] felt he didn’t need to rush the decision. But I know there’s a lot of well-qualified ones sitting there biting their nails to see who he picks,” said Craig Enoch, who served on the Texas Supreme Court from 1993 to 2003. “It may not be until session is over. … It may be that his whole point is not to give [lawmakers] anything to distract them until they’ve got this other work done.”
But “there could be consequences for waiting until June,” Enoch added. The governor likely could appoint an interim judge to break any 4–4 ties that arise on the court, but that doesn’t help sitting justices who may be tasked with a higher workload if the court’s rulings are all to come down on time.
In interviews with The Texas Tribune, 10 applicants — including several seen as top candidates, such as appellate court justices who have interviewed for the high court in the past — said they have heard nothing from the governor’s office since applying weeks or months ago. And in the meantime, some of Abbott’s best options may move on to private practice. Others have offers for lucrative partnerships at choice law firms.
Scott Field, a candidate and former justice on the 3rd Court of Appeals, starts this month with the law firm Butler Snow. Jane Bland, a former justice on the Houston-based 14th Court of Appeals who applied to the high court in November, just over a week after losing her election to a Democrat, started this week as a partner with Vinson & Elkins.
“I haven’t really thought about that aspect of the future because I’ve just started a brand new job,” Bland said this week in an interview.
But several other candidates said they told the law firms courting them they’d walk away if the high court job works out. Nearly all said they remain eager to serve — if the governor’s office ever comes calling.
“Whoever [Abbott] picks is going to be outstanding,” Enoch said. “He just isn’t ready to pick ’em yet.”