GOP delaying tactics are primarily to blame. Senate Republicans have used procedural tricks to block votes or slow down the process, even on uncontroversial administration nominees -- and not just for judge-ships. "There is no explanation or excuse for what continues to be a practice by Senate Republicans of secret holds, and a Senate Republican leadership strategy of delay and obstruction of this president's nominations," Judiciary chair Patrick Leahy said on the floor last week. "That is wrong."
"It's a serious problem," Marge Baker of People for the American Way agreed, in an interview with TPMmuckraker. "It's happening to an extent that is abusive."
But that may not be the whole story. According to one progressive activist, "80 percent of the problem is the GOP, and 20 percent is a Democratic problem."
Specifically, some observers say the White House was slow off the mark last year in getting nominees into the pipeline. They agree, however, that since Bob Bauer took over as White House counsel in January, the pace has picked up.
But Senate Democrats, progressives argue, haven't sufficiently prioritized the nominations process, and they haven't exploited their unusually large majority -- all but certain to be smaller next year -- to challenge Republican obstructionism as aggressively as the situation demands. Advocates say that because most of the nominees at issue are uncontroversial, if Democrats simply scheduled votes and forced the GOP to filibuster, Republicans would ultimately cave, as they have in the past. "In most cases this is all theater, because when push comes to shove, Republicans join in voting for cloture, and generally speaking, the nominee is confirmed," Nan Aron of the Alliance for Justice told TPMmuckraker.
"I think the leadership simply hasn't been willing to stop everything to process nominations," William Yeomans, a former chief counsel to Ted Kennedy on the Judiciary committee, who now teaches at the American University law school and continues to follow the process closely, told TPMmuckraker. "The way to do that is to call out Republicans and burn some floor time, and bring these to the floor."
That would be time-consuming, and could tie up the Senate at a time when there's no shortage of other pressing legislative business. But advocates agree that Democrats need to start playing hardball. "There ought to be a much more significant push by Judiciary committee senators, as well as Senate leadership, to schedule these votes, and to play tough with the senators who have placed holds on these nominees," said the progressive activist, adding that Senate Democrats should take a lesson from their House counterparts. "We need a Nancy Pelosi in the Senate."
"It's time to make it a higher priority," said Yeomans.
"This is something we're very focused on," Regan Lachapelle, a spokeswoman for Senate Majority Leader Harry Reid, assured TPMmuckraker. But she acknowledged that other issues have gotten in the way. "If we had to file cloture on all these, it would take a long time, and we do have other issues we have to consider, including Wall Street reform," she said, adding "we will continue to keep the pressure on." A spokeswoman for Leahy did not immediately respond to a request for comment.
Ultimately, Yeomans argued, the problem may reflect a longstanding difference in the approaches taken by the parties on the issue "Democrats have always made judicial nominations a slightly lower priority than Republicans," he said. "[Republicans] were able to turn the judicial nominations issue into a winning political strategy for them," by stoking conservative fears about liberal activist judges re-writing the Constitution. "Democrats have never done that."
The stakes are potentially sky-high. Beyond general obstruction, Senate Republicans' ultimate goal, progressives charge, is to keep these vacancies open until President Obama leaves office, allowing a new Republican president to appoint conservative judges instead. That's what the GOP did with some success during the Clinton administration, allowing President Bush to significantly reshape the federal judiciary upon taking office. If that happens again, it could threaten key Obama accomplishments -- including health-care reform, whose constitutionality Republicans in several states already have challenged.
"It's something that the administration has to be very worried about," Yeomans said. "If conservative courts take on the president's legacy, they can do enormous damage."
That's leaving aside, of course, the human impact. Vacancies on the bench cause cases to be processed more slowly, hurting ordinary people who count on the courts, especially now. "For people being turned out of their jobs, denied food stamps -- often the only place that someone can turn is to a court," said Aron. "During hard economic times, more and more people rely on federal judges to help solve their problems."
"It really has an impact on ordinary Americans -- more than any other branch of government."