When President-elect Donald Trump takes office for a second time in January, he will have the opportunity to nominate three, possibly four judges to the federal district court in Houston.
On Sunday, U.S. District Court Judge Lee Rosenthal stepped down from active service, creating a vacancy for Trump to fill. U.S. District Court Judge Andrew Hanen also plans to take senior status on January 2.
Both Rosenthal and Hanen announced their intention to take senior status earlier this summer, indicating they likely did not time their announcements to coincide with the winner of this year’s presidential election. But their moves give Trump and his allies the ability to nominate two more judges, who if confirmed by the U.S. Senate, will serve on the federal bench in Houston for decades to come because judges have lifetime appointments.
Trump has promised to appoint “rock-solid conservative judges” like former Supreme Court Justice Antonin Scalia and current Justices Clarence Thomas and Samuel Alito. The first two are known for their “originalist” approach to interpreting the Constitution.
Once Hanen assumes senior status, the Southern District of Texas will have four district court vacancies. Two have existed since 2023 when Houston-based Judge Lynn Hughes and McAllen-based Judge Micaela Alvarez became senior judges. Although Alvarez is based in McAllen, she replaced Houston-based Judge David Hittner when he assumed senior status in 2004 and the district’s chief judge may decide to assign her replacement to Houston.
Senior status is available to judges over 65 who have completed at least 15 years on the federal bench. Presidents name replacements for senior judges, who typically take on reduced caseloads.
President Joe Biden could still nominate replacements for Hughes and Alvarez, but there isn’t enough time for Senate Democrats to confirm them before Republicans take control of the chamber on January 3, said Carl Tobias, a law professor at the University of Richmond. It also doesn’t appear that Texas Senators John Cornyn and Ted Cruz have signed off on any potential nominees for the two seats.
Under a longstanding practice, senators must return so-called “blue slips” indicating their support for the president’s district court nominee before the nominee can be confirmed. Cornyn declined to comment for this story through a spokesperson.
Senate Democrats are razor-focused on confirming the dozen nominees already in the pipeline, aiming to match or potentially surpass the 234 nominees confirmed by the GOP under Trump. Tobias said Trump is positioned to build upon that feat, especially since many of the district and appellate court judges appointed by previous Republican presidents will be eligible to take senior status either next year or the following year.
During his first term, Trump appointed fewer non-white jurists than his predecessor, Barack Obama, but more women than George W. Bush, according to a report by the Pew Research Center. Two Trump-appointed judges, 61-year-old Charles Eskridge and 57-year-old Drew Tipton, sit on the federal bench in Houston. Both are white men.
Federal district and appellate judges decide everything from whether a company stole a copyright, whether an employer discriminated against its employees, whether police officers make lawful, constitutional arrests, to whether voters have been disenfranchised. They also frequently decide on critical issues like abortion access, immigration, and transgender rights.
“Almost every facet of society comes to the courts at some point and the district court judges are the first line of defense,” said Joshua Blackman, a professor at the South Texas College of Law in Houston.
Texas' Southern District, headquartered in Houston, is one of four federal district courts in Texas, along with the Northern, Western, and Eastern districts. It has seven divisions and federal courts in Houston, Galveston, Victoria, Corpus Christi, Brownsville, McAllen and Laredo.
Rosenthal, who turned 72 on Saturday, has been a federal judge in Houston since 1992 when she was appointed by President George H.W. Bush. She is perhaps best known for her 2017 rulings that deemed Harris County’s bail practices unconstitutional and unfair to those charged with low-level crimes and that Pasadena had violated the rights of its Latino residents by deliberately diluting the power of their vote. Both rulings were largely upheld by the Fifth Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi.
Hanen, who turns 71 on December 10, started his career as a federal judge in Brownsville after President George W. Bush nominated him to the bench in 2002. He later transferred to Houston. His most high-profile ruling came in 2015 when he blocked the implementation of President Barack Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA.
In his decision, Hanen said the program, which would have shielded around four million undocumented immigrants from deportation and allowed them to legally work in the U.S., was illegally implemented because the federal government hadn’t given enough time for public comment, the Texas Tribune reported. The Supreme Court eventually deadlocked 4-4 in the case after Justice Antonin Scalia died, effectively ending the program.
In 2021, Hanen declared DAPA’s sister program, the Deferred Action for Childhood Arrivals, or DACA, illegal. In an effort to satisfy Hanen’s concerns, the Biden administration introduced a revised version of the program, but Hanen ruled it unconstitutional as well in 2023. The Fifth Circuit is considering an appeal by the Biden administration, and the case is expected to eventually make its way to the Supreme Court.
Tobias said he expects Cornyn and Cruz will likely move quickly to recommend replacements for Hughes, Alvarez, Rosenthal, and Hanen because the Southern District of Texas is one of the busiest courts in the nation in terms of the number of cases filed each year. The United States Judicial Conference considers Hughes' vacancy an emergency because so much time has passed without a replacement.
There are also two vacancies in the Western District of Texas and one in the Northern District.
Taking senior status allows judges to continue hearing cases but wind down the number they hear each year, Tobias said, adding that, “in lots of districts, especially like the Southern District, it tends to keep the court afloat because they are drowning in cases.”
Five of the 12 district court judges in the Houston division of the Southern District of Texas— not including Rosenthal and Hanen — are senior judges. They are David Hittner, Kenneth Hoyt, Sim Lake, Ewing Werlein, and Gray Miller. While senior, Hughes is no longer assigned cases and is considered inactive.
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