Fox News correspondent Shannon Bream misleadingly claimed that filling the vacancies on the second-most important court in the country was less pressing than filling seats in so-called “judicial emergency” jurisdictions, while ignoring how Senate Republicans have contributed to those emergencies.
In a November 25 segment on Special Report with Bret Baier, Bream suggested that, because the D.C. Circuit is not classified as a “judicial emergency,” there is no reason to quickly confirm President Obama's highly-qualified nominees to that bench, such as Georgetown Law Professor Cornelia “Nina” Pillard:
BREAM: Critics say there is no reason for the president to insist these nominees, including Pillard, be approved as quickly as possible. Across the country there are four federal appellate courts so lacking in judges that there are, quote, “judicial emergencies.” And this court, the D.C. Circuit, it's not one of them.
But the body that determines these “judicial emergencies,” the U.S. Judicial Conference, has recommended that the D.C. Circuit retain its 11-judge complement, a capacity the current GOP filibusters are preventing.
Judicial emergencies occur when vacancies persist despite an excessive caseload in a given jurisdiction. What Bream fails to mention in her report is that Senate Republicans have helped to create judicial emergencies by slow-walking the process. From denying the scheduling of votes to outright blocking judicial nominees from their own states through the "blue slip" process, the GOP has taken its obstruction to unprecedented levels.
Here's how the obscure but effective “blue slip” blockade works: each Senator is given an opportunity to weigh in if a judge from his or her state is nominated to the federal judiciary. On a blue slip of paper, the Senator will either approve or disapprove the judge's nomination. According to the non-partisan Alliance for Justice, 18 of the 24 vacancies in “judicial emergency” jurisdictions are in states where Republicans have blocked the nominations of their home-state judges, even without the pretense of legitimate criticisms of the nominees themselves.
Take for example Republican Florida Senator Marco Rubio. When Judge William Thomas and Judge Brian Davis were nominated for federal judgeships in Florida, both Rubio and Democratic Senator Bill Nelson approved. But Rubio, who recommended Thomas in the first place, later withdrew his support because of "concerns" over Thomas' handling of criminal cases, a belated excuse that local court observers condemned as "crass Tea Party politics  sabotaging Judge Thomas' reputation and aborting the confirmation process."
Both nominees are African-American, and Thomas would have been the first openly gay black judge on the federal bench.
As reported by local media, bar associations are “perplexed” at Rubio's flip-flop, and critics say it marked a “ratcheting up of Republican efforts to block President Barack Obama's judicial nominees.” From The Daily Business Review of South Florida:
Republican U.S. Senator Marco Rubio, a tea party darling, is blocking confirmation hearings for two black judicial nominees by withholding the formality of submitting what is known as a “blue slip.”
Miami-Dade Circuit Judge William Thomas was nominated 552 days ago for a Miami opening in the Southern District of Florida. Nassau Circuit Judge Brian Davis has been waiting even longer -- 612 days -- for action to fill a Middle District of Florida vacancy in Tampa.
South Florida bar associations representing black attorneys have gotten no answers about the nominations from Rubio's office. They remain perplexed because Rubio appointed numerous members to the Federal Judicial Nominating Commission, which backed Davis and Thomas.
Rubio interviewed both nominees and recommended them along with Nelson to Obama.
“It's not like he is coming at this blind,” Wiley said.
The limbo facing many of Obama's judicial nominees serves as a warning to potential applicants not to try for the federal bench unless they want to become political footballs, she said.
“We try to encourage qualified people to come forward and endure an already arduous process only to be hit with politics like this where it is almost an impossibility to figure what the issue is,” Wiley said. “It can be quite overwhelming.”
In a report about the significance of judicial emergencies, it seems odd that Bream would ignore that the majority of emergencies were caused by Republican Senators. Now that Senate Democrats have eliminated the use of the filibuster when voting on some judicial and executive branch nominees, it is possible that Senate Republicans will continue their unprecedented obstruction of those nominees through the blue slip process.