With an angry letter last week accusing Senate Republicans of "unprecedented obstruction" of his judicial nominees, President Obama seems to have realized the futility of his administration's well-intentioned objective of "putting the confirmation wars behind us." Wars end only when both sides agree to put down their arms, and Senate Republicans never had any desire to do that. So, what's the endgame for this session of Congress? And which side will prevail in the longer term?
Certainly Obama tried for a ceasefire. He has reinstated pre-nomination ABA screening, which President George W. Bush stopped, and he has not chosen a single nominee deemed "not-qualified" by the ABA. Obama has also taken very seriously the need to win support of both home-state senators, even for federal appeals court nominees, and has not yet nominated a single candidate without it, even when one or both of the relevant senators have been from the opposing party. Neither President Clinton nor President Bush could claim the same at the same point in their presidencies. The additional screening and consultation have slowed down Obama's pace of nominations considerably and, in many cases, produced nominees who are older and more centrist than those advocated by Obama's progressive supporters.
A lot of good this has done in the Senate. Republicans have managed to invent controversy even about nominees who were expected to sail through. Obama's very first judicial nominee, David Hamilton, for example, was nominated with the strong support of the most senior Republican in the Senate, Richard Lugar of Hamilton's home state of Indiana. Also onboard was the head of the Indiana Federalist Society. But Senate Democrats still had to overcome a Republican filibuster of Hamilton's nomination to the 7th Circuit Court of Appeals—after more than five months waiting for a Senate floor vote.
Many other nominees haven't even been that lucky. President Obama nominated Kimberly Mueller to the busiest federal district court in the nation, the Eastern District of California, this year in early March. On May 6, Mueller was reported out of the Senate judiciary committee on a voice vote with no recorded opposition. Fully five months later, she sits waiting for a vote on the Senate floor.
By this point in his presidency, George W. Bush had 78 judges confirmed who had waited an average of 22 days after being favorably reported out of the Senate judiciary committee. Only 41 Obama judicial nominees are now on the bench, and they waited an average of 90 days after their judiciary committee vote. (More on the numbers here.) Jane Stranch, recently confirmed to the 6th Circuit Court of Appeals, waited 298 days from the time she was approved by the Senate judiciary committee by a vote of 17-4 until the full Senate backed her 71-21. Meanwhile, a vacancy crisis mounts on the federal bench around the country, with nearly 1-in-8 judgeships open and 49 judicial emergencies declared and those seats still unfilled.
Obama has 23 nominees who, like Kimberly Mueller, have made it through the judiciary committee and are waiting only for a vote on the Senate floor. Another 25 are winding their way through the Senate judiciary committee process. At this point, the earliest any nominee could be confirmed is the middle of November, when Congress returns for a lame-duck session after the midterm elections. There is certainly precedent for a big crop of lame-duck confirmations—in a five-day period in November 2002, a Senate controlled by Democrats confirmed 20 Bush judicial nominees on a voice vote, including contentious picks for appellate court slots, such as Michael McConnell (confirmed to a seat on the 10th Circuit) and Dennis Shedd (confirmed to a seat on the 4th Circuit).
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.