The number of federal court vacancies is nearing historic highs.
But dont expect the Senate to suddenly push aside its other business and spend the next month trying to ram through President Barack Obamas long-stalled picks for the bench.
Instead, a few nominees might fill the time between bills over the next few weeks. More likely, judicial nominations could be relegated to Monday night bed-check votes, a practice that has become more common in recent months as the chamber has been bogged down in partisan gridlock.
That practice will continue tonight, when Senators file in from their monthlong break to consider the nomination of Jane Stranch to serve on the 6th Circuit U.S. Court of Appeals.
Monday night bed-check votes are often judicial votes because they are quick and easy, so theyre good to get out of the way, a Judiciary Committee aide said, noting that nominees considered at the start of a week often clear without defections.
If confirmed, Stranch will become the seventh judicial nominee since June to be considered on a Monday night, and like the others, she could sail through without opposition on the floor.
According the Judiciary Committee, an unusually high 103 out of 876 federal district and circuit court judgeships are vacant.
The chamber has voted on nine judicial nominees since June and confirmed just 19 of Obamas nominees this year.
So far in his presidency, 42 of Obamas 89 judicial picks, including two Supreme Court nominees, have been confirmed, setting a pace Democrats describe as painfully slow. By comparison, President George W. Bush saw 75 of his 127 judicial nominees confirmed at the same point in his presidency, and for President Bill Clinton, 84 of his 124 were confirmed.
Obama weighed in on the issue Friday, telling reporters, I am concerned about all Senate nominations these days.
Weve got judges who are pending. Weve got people who are waiting to help us on critical issues like homeland security, Obama said. And its very hard when youve got a determined minority in the Senate that insists on a 60-vote filibuster on every single person that were trying to confirm, even if after we break the filibuster it turns out that they get 90 votes.
Judiciary Chairman Patrick Leahy often takes to the floor to discuss judicial nominees, rattling off statistics and calling for consensus picks to be confirmed. In a statement, the Vermont Democrat warned, The cost of this partisan obstruction is mounting caseloads and backlogs in federal courts throughout the country, making it harder for Americans to seek justice in their courts.
There is no good reason to hold up consideration for weeks and months of nominees reported unanimously by the Judiciary Committee, he added.
Jeff Peck, who served as chief of staff of the Judiciary Committee under former Sen. Joseph Biden (D-Del.), said potential nominees could be deterred from wanting to serve on the bench if they fear being subjected to a confirmation process that could take months or even years to complete.
It used to be being nominated for a federal judgeship was a great thing. If you were a lawyer, you hit the top of the professional mountain when youve been nominated, said Peck, a partner at Peck, Madigan Jones & Stewart. Today, the good news is youve been nominated to be a federal judge. The bad news is youve been nominated to be a federal judge and youve been exposed to a dysfunctional confirmation process. Unless youre a sitting judge, your life is in limbo in ways you cant imagine.
Republicans counter that Majority Leader Harry Reid (D-Nev.) can schedule time for judicial nominees if he chooses and that nominees have taken a backseat to other Democratic priorities this year.
Republicans will continue to do their part in considering nominees at a responsible pace in contrast to Democrats obstructionism and repeated filibusters during the Bush years, said Stephen Miller, spokesman for Judiciary ranking member Jeff Sessions (R-Ala.). The reality remains that President Obama has nominated judges at a slower pace than his predecessor and Democrats have not made moving certain nominees a priority.
Republicans also say the chamber approved Obamas two Supreme Court nominees without much delay and even cleared 13 of Obamas lower court picks while Elena Kagans nomination was making its way through the chamber. Additionally, four judicial nominees were cleared before the August break potentially the largest group to move for the rest of the year.
Democrats have already set out this fall to approve a small-business bill, a continuing resolution and an extension of some expiring tax cuts approved in 2001 and 2003. Incumbents facing tough re-elections are eager to wrap up the work and return home to campaign, so adding nominations to the list of priorities is unlikely, sources say.
Judges are a Washington, D.C., thing, and right now, Democrats need to focus on jobs, one staffer said. Judicial nominations are important, but right now theyre not as big a priority.