Without a similar lame-duck floor-clearing of the 23 nominees waiting for a floor vote, they all must go back and start over again, from the beginning, in January. President Obama should push hard for a vote. But he should not hold his breath. Voice votes on nominees require unanimous consent, which basically means that Mitch McConnell must let these confirmations through. As should be painfully obvious by now, McConnell isn't interested in filling the holes on the bench. The Senate minority leader seems to be looking ahead to 2012: With Obama looking less than invincible, McConnell appears already to be hoping that if these seats stay open, a Republican president will get to fill the vacancies.
This escalation of political gamesmanship is awful for the judiciary and for Americans seeking justice in this country. But as a political calculation, it's sensible enough for McConnell. The conservative base is always energized by a good fight over judges, and McConnell and his allies have masterfully turned the slow pace of Obama's nominations and Obama's efforts to achieve consensus into an argument that Obama is apathetic about the judiciary and to blame for the vacancy crisis.
What should the Obama administration do? The president should make it clear that the problem here is Republican obstructionists, by making sure that by January 2011, his administration has a nominee ready to go for every vacant judicial seat. That will be two years into the Obama presidency. There will be no excuse for a huge backlog, and that should help the problem gain political traction.
Obama should also have a Plan B. If the Senate continues to block his nominees in mass, he should consider making recess appointments to fill vacancies in at least some seats that have been declared judicial emergencies. These appointments would be only temporary: According to the Constitution, recess appointments expire at the end of the "next session" of Congress, which can be from one to two years from the time of the appointment. But they would provide the judiciary with desperately needed staffing. Republicans would squawk and threaten to block permanent Senate confirmation for the recess appointees. But on this one, the administration would almost certainly have public support.
The winning strategy, for the president, is to force McConnell to either relent or pay a political cost heading into 2012. By his own account, President Obama has been a reluctant confirmation warrior. But the time for reluctance is over.