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Earlier this month, Scott Horton asked an interesting question: “When Is Offering a Drink of Water a Crime?” The answer, it would seem, is once Eric Holder’s Justice Department finds enough judges like Jay “Waterboard ‘Em” Bybee to help them out with that:

Last August, I reported on the case of Walt Stanton, a graduate student at Claremont Theology School who, with a group called “No More Deaths,” deposited bottles of water at points in the Buenos Aires National Wildlife Refuge, an 18,000-acre area on the Arizona-Mexico border. Stanton and his group have no particular position on the illegal immigration issue—they just think that the immigrants shouldn’t die from dehydration. The Justice Department, however, saw the offer of a drink of water as a criminal act, and brought charges. In the absence of any clear criminal statute that would cover the situation, the prosecutors argued that Stanton’s act of Christian charity was in fact “criminal littering.” Under heavy pressure from the feds and a federal magistrate who made his intention to convict plain, Stanton agreed to 300 hours of community service in lieu of a prosecution.

As it turns out, Stanton should have stood his ground. Some of Stanton’s colleagues pushed the case and appealed their conviction. Now the Court of Appeals has handed down its less-than-astonishing decision: leaving purified water in sealed containers for human consumption is not “littering.” The convictions were overturned, and the Justice Department was given a smackdown.

One judge on the panel saw things differently: Jay Bybee. He argued that the statute, which prohibits “littering, disposing, or dumping in any manner of garbage, refuse sewage, sludge, earth, rocks, or other debris,” was actually intended to criminalize Samaritans who offer a drink to illegal immigrants.

Well, so things didn’t pan out for the executive branch this time.  But they may just need to wait a while — because the percentage of Republican-appointed federal judges has actually been *increasing* during Rahm Emanuel’s tenure.  Again, Scott Horton:

Few things count more towards a president’s “legacy” than this, since judges have lifetime tenure. But, as the Associated Press shows in a study published this weekend, under the first two years of Barack Obama’s presidency, the G.O.P.’s already strong grip on the federal judiciary has actually tightened:

A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago. The delaying tactics have proved so successful, despite the Democrats’ substantial Senate majority, that fewer than half of Obama’s nominees have been confirmed and 102 out of 854 judgeships are vacant. Forty-seven of those vacancies have been labeled emergencies by the judiciary because of heavy caseloads.

With the Obama appointment process essentially stagnated, and the judges leaving the bench largely those who were appointed by Carter and Clinton, the G.O.P.-appointed percentage of the bench has actually risen.

This performance is inexplicable in light of the enormous Democratic majority in the Senate, which at times has hit the 60 votes needed to preclude procedural measures against nominees. It reflects a dramatic failure of management by senate Democratic leaders like Patrick Leahy and Harry Reid, but it also points to a White House that is simply oblivious to the nominations process. On this measure, Rahm Emanuel is the worst performing White House chief of staff in recent memory.

So maybe Emanuel, Holder, Obama et al — together with Republicans in Congress and the Jay Bybees of the judicial branch, of course — will soon be able once again to make helping people dying of thirst a crime again, and I guess that’s the way it should be.  Hard to square with this, though:

…for I was hungry, and ye did not give me to eat; I was thirsty, and ye gave me no drink; I was a stranger, and ye took me not in; naked, and ye clothed me not; sick, and in prison, and ye visited me not.  Then shall they also answer, saying, Lord, when saw we thee hungry, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee? Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not unto one of these least, ye did it not unto me.

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CREDIT: Biblical reference via Facebook comment by Andy Famiglietti.
EDIT, 9/16: Verse number corrected.  Blush.