MIDLAND – Federal judgeships are among the most prestigious – and demanding – jobs in the country. The position is even more challenging when the resources are tight, the political climate tense, and the media scrutiny abundant. In addition, the U.S. District Court for the Western District of Texas is geographically larger than some Northeastern states.
But more than two-dozen trial and appellate judges shut down their courtrooms for a couple hours Thursday to celebrate the investiture of West Texas’ newest Article III jurist: David Counts.
Originally nominated by President Obama and re-nominated by President Trump, Judge Counts was technically sworn in as the Western District’s 40th district judge in January and he’s been busy tackling scores of civil and criminal cases during the past eight months.
But for 90 minutes Thursday, hundreds of lawyers, family members, military officers, friends and even Judge Counts’ third grade teacher packed into the Midland County Horseshoe Arena to join the new federal judge’s colleagues in the ceremonial version of his swearing in.
“We’re grateful to the president and Senate for choosing Judge Counts,” Chief U.S. District Judge Orlando Garcia of the Western District of Texas said during opening remarks. “He was confirmed by a vote of 96-0. That doesn’t happen often as you know in Washington.”
Retired U.S. District Judge Royal Furgeson of the Western and Northern Districts also tipped his hat to Washington’s selection when he spoke.
“Who would have thought that Barack Obama and Donald Trump would agree on anything… but they did,” he said. “Both agree that David Counts should [serve]. You’re witnessing something as unusual as the eclipse of the sun.”
Exclusive Texas Lawbook Interview
In an exclusive interview minutes before the investiture ceremony began, Judge Counts acknowledged to The Texas Lawbook that the federal bench in the Western District of Texas faces challenges, including a heightened political climate, reduction in funding and resources and a two-decade-long decline in civil jury trials.
“We have a very good legal community in the Midland/Odessa area, as well as Pecos and Alpine… both are very near and dear to my heart,” said Judge Counts, who received his undergraduate degree from Texas Tech University and his law degree from St. Mary’s University School of Law in 1986. “The people here are just the best. You can’t find better people anywhere.
“It’s just a joy to be able to preside over trials, hearings and whatever else we may have when people are professional, they know what they’re doing and give it all they have,” he said. “I’ve learned over the last eight months that it really helps the judge when the attorneys prepare, and I have nothing but praise for the people I’ve presided over the last eight months.”
Judge Counts took the bench in Midland only eight days after his unanimous Senate confirmation in January. Since then, he has taken 13 or 14 cases to trial – two of them civil.
“[The Western District] is probably the hot bed of trials,” said Judge Counts, who is also a colonel in the Texas National Guard, where he is assigned to the Judge Advocate General’s office. “It doesn’t look like it’s going to slow down; my predecessors have all had the same experience. It’s just an area where attorneys basically like to go to trial, which is great because you don’t lose those trial skills. Everybody just gets back on the horse.”
There is a concern for the decline in the jury trial, he acknowledged, particularly civil trials, given the fact that criminal cases take the priority due to the constitutional right to a speedy trial.
“You worry that people either never learn or lose those skills, but those are being addressed somewhat,” he said.
Judge Counts said fellow Western District Judge Xavier Rodriguez in San Antonio is working with others on “innovative ideas to try to help people get to trial more, or at least simulations of trial.
“It’s important for more experienced attorneys to always be bringing along and mentoring younger, less experienced attorneys,” Judge Counts said. “A lot of times that’s not expedient. There’s always going to be some restrictions or limitations based on trial needs, clients, preferences, things like that. But I think we’ve shown that doing that to some extent can help a lot.”
Budget limitations on the judiciary remain a concern.
“You’re always doing your job no matter what the resources are,” he said. “Everybody’s always vying for more resources, you’re always – whether you know it or not – competing with other districts. But you do with what you’ve got, and you keep going.”
His biggest concern for the overall federal judiciary, Judge Counts said, is for the judges to maintain their independence.
“The more intense the political atmosphere, the more difficult that is because people read into rulings, they read into who was appointed by whom,” he said. “A lot of times I think… we’re just trying to make the right call based on the constitution and the law.”
Praise from Colleagues
Remarks made by fellow members of the judiciary and others in the Western District legal community suggest that his peers have no doubt in their minds that Counts will excel in his new role.
“He has character and he has courage,” former Texas Tech University Chancellor and U.S. House of Representatives member Kent Hance said. “David Counts is one of the few people you could play poker with over the phone. He’d say, ‘I’m drawing a three,’ or: ‘Can I draw one more?’ ”
David Prichard, a San Antonio lawyer who is the chairman of the Federal Judicial Evaluation Committee, vouched for how difficult the process is when being considered for a federal judgeship.
The process, he said, entails filling out an application of 30 to 100 pages, being interviewed by the committee multiple times, undergoing an extensive FBI background check, earning the nomination by the president; flying to Washington to interview with the Senate Judiciary Committee; flying back again to interview with the full Senate, and then if the vote passes, you’re in.
“It’s a grinding, grueling method of a process,” Prichard said. “Why is it so grueling? It’s a lifetime appointment. You have no do-overs; you have to get it right the first time. Judge Counts went through this process twice.”
In fact, the process is so grueling that it took U.S. District Judge Karen Gren Scholer of the Northern District, who was in attendance Thursday, 11 years to reach her investiture.
“He always did it (the process) with a smile on his face,” Prichard said of Judge Counts. “David Counts is a class act.”
Prichard hinted that the last vacancy in the Western District will, with fingers crossed, be filled soon. He said the “young man is undergoing the FBI check now.”
Counts’ status as newest-appointed judge in the Western District will be short-lived. Judge Alan Albright of Waco will be officially sworn in Tuesday.
A testament to the challenge of serving on the Western District is the sheer size. As Judge Furgeson pointed out, the Western District constitutes 92,000 square miles.
“It’s a district that’s larger than the state of Connecticut,” he said. “Some jurors travel over 200 miles to do their service. These citizens and these lawyers deserve justice in who their judge is. To have as good of a judge as you, we all have won.
“You, Judge Counts, without a doubt are a great American,” Judge Furgeson said. “Good luck, and Godspeed.”
After the ceremony, Judge Furgeson elaborated on some of his comments when The Lawbook asked him why the Western District needs someone like David Counts on the bench.
“I served the Midland/Odessa and Pecos/Alpine area for eight years, and you need somebody that can really work hard and has a lot of energy, and has got all the qualities you want in a great judge,” he said. “And that’s David Counts. Not only does he bring confidence skill, experience, good judgment, but he brings energy. And you know you’re beating the path up and down the freeway from here to Pecos and back to Alpine. You’re traveling all the time.
“It’s a really hard job, and David Counts is perfect for it.”
Circuit Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit also vouched for how hard Counts’ job is – and how hard his own court makes it.
“He has to wrestle every day with federal sentencing guidelines,” he said.
In a self-deprecating manner, Judge Smith explained to the crowd that once Judge Counts sentences someone, he then has to “wait two years” for the justices in New Orleans to tell Counts that he “insulted the integrity of the system, yet it took them 22 pages to explain why.
“With that, are you sure you still wat the job?” Judge Smith asked jokingly, but then pointed out that Judge Counts’ previous magistrate judge position already got filled, so there’s no going back.
Judge Counts was born in Knox City, Texas in 1961, a town with a population of a little over 1,000 people.
He attended Texas Tech University for undergrad, where he discovered two loves: Red Raider football and his wife, Jill. Together they have three children – Jennifer, Sarah and Matthew – and three grandchildren.
“Texas Tech changed my life,” Judge Counts said after he put on his judicial robe. “It opened my eyes, and showed me that anything is possible.”
After graduating law school at St. Mary’s, Counts began his legal career with a short stint practicing at a civil law firm in Austin before joining the Travis County District Attorney’s Office.
He made a name for himself in 1993 when he successfully tried the capital murder trial of serial killer Kenneth McDuff, who was executed by lethal injection in 1998. McDuff had been sentenced to death in 1966 for murdering three people in California, but his death sentence was commuted to life in prison when the U.S. Supreme Court handed down Furman v. Georgia in 1972.
For some strange reason, McDuff was paroled in 1989 and he took a job as a gas attendant in Waco. Prosecutors say he restarted his murderous ways only three days after he was freed, although he evaded authorities for nearly four years.
In 1991, he was charged with the rape and murder of Louisiana resident Colleen Reed, who was in Austin at the time. Counts was assigned to prosecute the case. McDuff was found guilty and sentenced to death (for the second and final time).
From 1995 to 2009, Counts served as an Assistant U.S. Attorney in the Western District of Texas. In 2009, his district judge predecessor in Midland/Odessa, Hon. Robert A. Junell, hired him to be a magistrate judge.
“He’s a man of rare character,” District Judge Robert Pitman of the Austin division of the Western District said of Judge Counts at the investiture ceremony. “He was born a leader. The facts support the myth… good things do happen to good people. And today, we’re the beneficiary of that.”