In a report on the renewed judicial nominations struggle over three vacant seats on the D.C. Circuit Court of Appeals, Fox News' Shannon Bream incorrectly reported that the court was balanced evenly and that past Democratic opposition to highly controversial Republican judicial nominees is equivalent to the blanket obstructionism President Obama's nominees are currently facing.
Appearing on Special Report with Bret Baier, Bream advanced the right-wing myth that filling the vacancies on the D.C. Circuit would "tip the balance" ideologically and is unnecessary, given its "lighter" caseload. From the October 29 edition of Special Report:
BREAM: The problem is this is the D.C. Circuit Court. And what's important about it is it is the key appeals court for looking at federal regulations and federal agencies, things like the EPA, the IRS. So it's something that looks at administrative action that goes around Congress. So it is a real check on administrative power. Now, this is the court that looked at the NLRB recess appointments, those appointments that the president made to the National Labor Relations Board, and found them unconstitutional. So it's very important. It's balanced right now evenly between judges who were appointed by Republican presidents and Democratic presidents, so adding even one new nominee of the president to this court is going to tip the balance. By the way, four of the current Supreme Court justices served on this court. It's very important.
BRET BAIER: But Democrats rightly point out there are a lot of empty seats so why shouldn't they be filled?
BREAM: Yeah, there are three vacancies. The President has tapped three different lawyers to fill those seats, including one who is currently a judge in a lower court. And basically, there were vacancies back when President George W. Bush was fighting to fill these seats as well. Back then Democrats said the court doesn't have enough of a workload to justify filling all of these seats. It's what Republicans are saying now and they add the workload has gotten even lighter in the last eight years. One of the judges currently sitting on the bench said this, quote, "if any more judges are added now, there won't be enough work to go around." That's from one of the current folks who's on this court.
Bream's report on Republican obstruction of Obama's judicial nominees parrots repeatedly debunked right-wing talking points. Bream is correct that the D.C. Circuit Court is a significant part of the federal court system -- it is considered second only to the Supreme Court in terms of its impact on federal law. It is strange, then, that she would uncritically report on Republican efforts to prevent the court from operating at full capacity. Moreover, her characterization of Democratic opposition to George W. Bush's D.C. Circuit nominees is demonstrably false -- that opposition did not result in the elimination of any seats, and ultimately four of Bush's nominees were confirmed. And unlike Bush's judicial picks, President Obama's nominees have faced unprecedented obstruction from Senate Republicans.
Bream also lends credence to the idea that the D.C. Circuit vacancies don't matter because of the number of cases on the court's docket. Republicans have frequently cited the D.C. Circuit's "low caseload" as evidence that the vacancies are unimportant -- even promoting legislation that would reduce the number of seats on the court. However, as NPR explains, the Republicans' misleading numbers game doesn't take into account the fact that the D.C. Circuit's docket is uniquely complex:
Republican senators like Chuck Grassley of Iowa say these judges just don't have enough to do.
"In terms of raw numbers, the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals," he says.
So Grassley is pushing legislation that would reduce the court from 11 seats to eight. He would get rid of one seat entirely and give the other two seats to the appeals courts in New York and Georgia, which he says have bigger caseloads.
Democrats note that Grassley happily voted to fill more than eight seats on the D.C. Circuit in the past -- back when Republican presidents were at the helm.
And critics argue Grassley isn't calculating caseload correctly. Carl Tobias of the University of Richmond law school says there may be fewer cases before the D.C. Circuit, but they're way more labor-intensive.
"Administrative agency appeals can be exceedingly complex with hundreds of parties and huge records that run to 50,000 pages. And they can take years to resolve," Tobias says.
Judges across the country agree. Just this spring, the Judicial Conference of the United States, a representative body of federal judges, concluded the D.C. Circuit still needed all 11 seats for its caseload. Traditionally, the Senate defers to the conference's recommendations.
The Judicial Conference, helmed by conservative Chief Justice John Roberts, also clearly disagrees that there "won't be enough work to go around" -- and they are not alone in rejecting the Republicans' faulty statistics. Last month in testimony, Tenth Circuit Court of Appeals Judge Timothy Tymkovich confirmed that D.C. Circuit judges are needed just as much now as they were when it was Republican nominees being considered. Worse, Bream's reference to "one of the judges currently sitting on the bench" is also a Republican talking point based on an anonymous source Republican Senator Chuck Grassley refuses to identify.
Incidentally, the former chief judge for the D.C. Circuit, speaking on the record, said precisely the opposite.
Bream's assertion that the court is currently "evenly" balanced also disregards the fact that the majority of the judges on the D.C. Circuit are actually Republican appointees. There are six judges on the court who have taken "senior status," a kind of semi-retirement that still allows the judges to fill in and hear panel cases. Because of the current vacancies on the court, many of the senior status judges do, in fact, hear cases. Five of the six judges who have taken senior status on the D.C. Circuit are Republican appointees -- meaning that the court is still very much dominated by right-leaning judges.
The GOP's blockade of this critically important court is once again a hobbyhorse for right-wing media as Republican senators are currently threatening to prevent the first of the president's three nominees -- veteran appellate and Supreme Court litigator Patricia Millett -- from even reaching the floor for an up-or-down vote. Similar to the absurd right-wing media attacks on Georgetown Law Professor Nina Pillard, another of the president's three D.C. Circuit nominees, these threats of filibuster don't even carry the pretense of concerns over real qualifications anymore. Indeed, Republican senators have bluntly admitted that their opposition to Millett has nothing to do with her personally, and everything to do with their scorched earth opposition to Obama.
Ultimately, it appears that a showdown over this egregious and unprecedented filibustering is again at hand. If filibuster reform finally arrives due to this historic obstructionism, congressional experts note Republican senators will have only themselves to blame.
In the meantime, contrary to Fox News' misrepresentations and false equivalency, the D.C. Circuit remains short staffed, even as eminently qualified prospective judges are shamelessly used as pawns.