The Senate ushered in the rules reform era by confirming Patricia Millett and Nina Pillard, two nominees to the D.C. Circuit Court of Appeals. The Senate is expected to confirm President Obama’s other D.C. Circuit nominee, Judge Robert Wilkins, before the December recess. This is great news for our federal judiciary and the administration of justice, but Republicans and conservative commentators are still trying—cynically and disingenuously—to make you believe otherwise.
Once the Senate changed its rules, the D.C. Circuit nominees were all but assured confirmation, and their extremist opponents were left with little recourse. So they’re getting desperate. One tactic has been feigned concern over the “judicial emergencies” that exist in various federal courts around the country. Courts have “judicial emergencies” when, because of vacancies, there simply aren’t enough judges to handle the caseload. There are 38 judicial emergencies as of this writing, 17 of which do not have a pending nominee. So why, the Republicans ask, are the Democrats “wasting” time on D.C. Circuit vacancies when there is more of a need elsewhere? Just yesterday, Minority Leader Mitch McConnell, R-Ky., took to the Senate floor to deride Majority Leader Harry Reid, D-Nev., for making the “choice to spend the week on nominations that are not emergencies.”
The right-wing Judicial Crisis Network (formerly known, when it was created during the Bush Administration, as the Judicial Confirmation Network), has been a principal peddler of this view. Its Chief Counsel Carrie Severino has argued further that blame for these emergencies cannot be levied on Republican obstruction, because any use of the filibuster has “had nothing to do with perpetuating judicial emergencies.”
But this argument ignores the fact that obstruction begins long before a nominee reaches the Senate floor, and therefore before the filibuster—the very last hurdle before a confirmation vote—could even be used. Crying foul on judicial emergencies in this way is as absurd as shutting down the government to protest affordable healthcare, and then accusing the Democrats of denying funds to cancer patients when NIH can’t open its doors. (Of course, the Republicans did that too.) Republican Senators have used every delay tactic at their disposal to prevent the President from appointing federal judges in their home states, and the unsurprising result is a growing list of judicial emergencies for which Republicans turn around and blame the President.
Consider the 17 judicial emergencies for which there is no pending nominee. At least 10 of those emergencies can be traced directly to obstruction by home state Republican Senators.
● Six of these emergencies are in Texas—one, in the Western District, is five-years-old—where Senators John Cornyn and Ted Cruz, (and before Cruz, Kay Bailey Hutchison) neglected vacancies for years before finally convening a selection committee that has yet to name finalists.
● In Georgia, Senators Saxby Chambliss and Johnny Isakson are holding Eleventh Circuit nominee Jill Pryor hostage, and demanding a ransom of Republican nominees to fill three emergency vacancies. Pryor would fill a judicial emergency herself if Chambliss and Isakson simply gave their OK.
● In 2010, President Obama nominated law professor Victoria Nourse to fill what is now a judicial emergency on the Seventh Circuit. Nourse had been selected by a Wisconsin selection commission and approved by Wisconsin’s senators at the time. But then newly-elected Republican Sen. Ron Johnson declined to give his support, and her nomination died in 2011.
It’s enough to make you wonder: Why are these Republican Senators spending so much time opposing D.C. Circuit nominees while so many judicial emergencies fester unattended?
There are also 21 judicial emergencies for which a nominee is pending right now, so there is no question that the president has done his duty to put forth nominees for the Senate to confirm. But in eight of these cases, Republican Senators are obstructing by withholding their “blue slips”—a signal of approval—for each nominee. By Senate tradition, a nomination can’t proceed without a blue slip. One of these emergencies is in the Eastern District of North Carolina, which has the single longest district court vacancy in the entire country—the judgeship has been vacant for 2,904 days.
Finally, the Republican judicial emergency argument relies on the false premise that confirming D.C. Circuit judges and filling judicial emergencies are mutually exclusive. In fact, there are eight nominees for judicial emergencies pending on the Senate floor right now, waiting for a vote. Reid filed cloture petitions on three of them Monday night, rendering McConnell’s claim about “spend[ing] the week on nominations that are not emergencies” patently false. If the Republicans were genuinely concerned about judicial emergencies, they would agree to immediately confirm the nominees already on the floor. Instead, they are using every minute of debate time allowed for every nominee Reid wants to confirm before the December recess. This led to a confirmation vote for Nina Pillard at about 1:00 a.m. this morning, and will likely keep the Senate in session through the night, into the weekend, and maybe even through the holidays. The confirmations are all a foregone conclusion, but the Republicans do not care. They are stalling for spite, and for revenge.
It’s clear who really doesn’t care about judicial emergencies