Judicial Hub

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In November, Texas voters will choose between Republican Ken Paxton and Democrat James Talarico for a seat in the U.S. Senate.¹ Most of the coverage has focused on the candidates themselves, but one result has gotten little attention: the race could decide who gets to be a federal judge in Texas. Under a Senate Judiciary Committee practice known as the “blue slip,” a district court nominee can’t advance without the approval of both home-state senators.² With Republican Ted Cruz holding Texas’ other seat until 2031, a Talarico win would give a Democrat a say, and potentially a veto, over President Trump’s picks for the state’s federal district courts.

Here’s how the process works for judicial nominees: when the president nominates someone to a district court, the Senate Judiciary Committee sends a blue slip to each of the nominee’s two home-state senators. A senator who supports the nominee returns the slip, which is considered “positive.” A senator who objects withholds or returns a “negative” slip. Under current practice, a nomination can’t advance without positive slips from both senators. If both are obtained, the committee can hold a hearing and vote on whether to send the nomination to the full Senate. Positive blue slips are not required for circuit nominees.² If Democrat James Talarico wins, he will be one of two senators whose approval a Texas nominee needs just to get a hearing.

In the primaries, both candidates faced competitive races. Ultimately, Paxton beat incumbent Senator John Cornyn 64-36 after both entered a runoff due to neither attaining 50% of the vote, while Talarico defeated U.S. Representative Jasmine Crockett outright in the Democratic primary 53-46.³ Now Paxton and Talarico face each other directly, after each survived their respective primary, and whoever wins will determine the next six years of nominees to Texas’ four district courts. In addition to the two candidates, Libertarian Ted Brown will also be on the ballot.¹ According to polling, however, Brown does not have a realistic shot at winning. While on the topic of polls, current polling shows Talarico in the lead with an average of 3 points (48-44.5) according to FiftyPlusOne.⁴ That’s a far cry from Trump’s roughly 14 point win in the state in 2024.⁵

Whoever wins this Senate race will ultimately shape the state’s federal district courts for the next six years. During Trump’s final two years in office, his administration would need Talarico’s cooperation if the Democrat wins. This will likely mean that Trump’s nominees will have to be more moderate if he wants to get them through the committee. As for the next administration, Republican or Democratic, it will have four years to compromise with either Talarico or the state’s other senator, Republican Ted Cruz, to fill any vacancies. Talarico and Cruz will need to cooperate and find a compromise candidate, marking the first time in Cruz’s Senate career that he would have to cooperate with a senator of another party in finding a Texas judicial nominee. If Paxton wins, it will mean maintaining the status quo for the remaining two years of the Trump administration and for future administrations, Republican or Democratic.

As of September 28, there are four vacancies spread across three of the four courts. Of the four, two have a pending nominee.⁶ Depending on how the election goes (e.g., Talarico wins), the administration may move quickly to nominate the remaining two and push the Republican-controlled Senate into confirming all four prior to 2027 during the so-called lame duck session. The Senate has already confirmed eight judges to these districts. If Talarico wins and the administration is unable to get all four vacancies filled, it must work with him to fill any remaining ones.

Now, how many new vacancies are to be expected in the next six years? It would be far too speculative to put out a number, so instead it is more informative to look at the number of judges who are already eligible, or are projected to become eligible, for senior status. According to our project, Senior Watch, in total, nine judges are currently eligible for senior status: Sam A. Lindsay (Clinton appointee), Keith P. Ellison (Clinton), Samuel Biery Jr (Clinton), Orlando Garcia (Clinton), Marcia A. Crone (GWB), James E. Kinkeade (GWB), Kathleen Cardone (GWB), Xavier Rodriguez (GWB), and J. Rodney Gilstrap (Obama). Looking forward, there are 15 judges who will be eligible for senior status from 2027 to January 3, 2033. Of them, eight were appointed by a Republican president (three by GWB and five by Trump) and seven were appointed by a Democratic president (all by Obama). The average age of these 15 is about 63 years, with the median being 62 years. The complete list can be found below on Senior Watch: Texas Edition. If any number of them retire and Talarico wins, his cooperation is required to fill the vacancies resulting from this.

While this discussion has focused on this Senate race and blue slips, it’s worth noting a separate, but related, scenario: if Democrats gain control of the Senate, regardless of whether Talarico wins or not, the Trump administration would face a different obstacle. A Democratic majority would also lead to a Democratic Judiciary Committee chair, who controls whether a nomination gets a hearing at all, and a Democratic Senate Majority Leader, who controls the floor calendar for a full Senate vote. In this event, the administration would likely be forced to nominate more moderate candidates for any court, including circuit courts and the Supreme Court, to get them through.

References

1. “Texas 2026 Election: Your November Sample Ballot.” The Texas Tribune, 1 Sept. 2026, https://apps.texastribune.org/features/2026/texas-general-election-ballot-november-2026/.[↩][↩]
2. The Blue Slip Process for U.S. Circuit and District Court Nominations (1917-Present) (2026), https://www.congress.gov/crs-product/R44975.[↩][↩]
3. “Texas Primary Election Results 2026.” NPR, https://apps.npr.org/primary-election-results-2026/states/TX.html. Accessed 27 Sept. 2026.[↩]
4. “FiftyPlusOne – Texas General Senate Election Polls and Average for the 2026 General Election.” FiftyPlusOne, https://fiftyplusone.news/polls/senate/general/texas. Accessed 27 Sept. 2026.[↩]
5. Astudillo, Carla. “Texas General Election Results: President, Senate, House and More.” The Texas Tribune, 5 Nov. 2024, https://apps.texastribune.org/features/2024/texas-2024-general-election-results/.[↩]
6. “Current Judicial Vacancies.” United States Courts, 27 Sept. 2026, https://www.uscourts.gov/data-news/judicial-vacancies/current-judicial-vacancies.[↩]