Obama Slower Than Bush to Confirm Justices

More than 10 months into President Obama's term in office, he and the Democratic-controlled Senate have been notably slow to confirm judges to the nation's courts, particularly when compared with recent administrations. To date, the president has made some 26 lower court nominations, yet only four have been confirmed by the Senate.

On the campaign trail, Obama promised an armistice in the perennial fights over federal judges. Those nomination skirmishes, while successful at arousing the political extremes of both parties, left the judicial branch of government badly understaffed. But the deliberate pace of the Obama administration so far hasn't helped either. Obama has lagged far behind his predecessor when it comes to even nominating judges for vacant positions. By this point in his first term, George W. Bush already had nominated 95 judicial candidates. The slow pace, combined with obstructive tactics by Senate Republicans and inaction from Senate Democrats, has left nearly 100 judgeships vacant, about 10 percent of the seats on the appeals and district courts.

Both Republicans and Democrats note that the process of replacing retiring Supreme Court Justice David Souter with Sonia Sotomayor consumed much of the time of both the Senate Judiciary Committee, which confirms federal judges, and White House vetters. But one review of the pending nominations asserts that the bottleneck isn't occurring in the Judiciary Committee. Instead, according to a study by Russell Wheeler of the Brookings Institution, the delays actually come in getting a vote from the full Senate. On average, the report says, Obama nominees have waited more than 130 days between the committee vote and a vote on the Senate floor. "The Republicans are spoiling for a fight on this [judicial nominee] issue, hoping that they can use it in the next election," says Doug Kendall, president of the Constitutional Accountability Center.

Democrats blame the GOP for obstructing the nominations just ahead of the votes by demanding hours of debate time or using anonymous "holds," which effectively halt the progress of a nomination.

"We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations," Judiciary Committee Chairman Patrick Leahy said in September after the confirmation of Judge Gerard Lynch to a seat on the Second Circuit Court of Appeals. Ranking Republican Jeff Sessions shot back: "There are those who say the Republicans are filibustering nominees, and to them, I say that is not correct. A hold is not a filibuster."

In another apparent tactic, Republican senators have asked for hours of floor debate time for nominations that are eventually approved with few, if any, "No" votes. Last week, for instance, Republicans asked for two hours to debate the nomination of Judge Roberto Lange to the District of South Dakota but used only five minutes to discuss the nomination, which was approved 100 to 0. Judge Lynch, for his part, waited three months for a vote from the full Senate to confirm him by a vote of 94 to 3.

Then again, the Democrats, who enjoy a 60-vote majority in the chamber, have been unwilling to force votes of yea or nay on the nominees. "They're the party setting the tempo and banging the gavel. Don't blame us for not moving things along," says one senior GOP staffer who works on judicial issues.

The vacancies are exacerbating conditions for the already strained third branch of government, which has not been expanded in the past 20 years. While both parties agree there is a need to have more judges to manage the increasing caseload, there is little political will to do so. Leahy introduced a bill that would add 63 federal judges to the nation's benches, but it has yet to attract even a single Republican cosponsor.

• See photos of the Obamas behind the scenes.
• See a gallery of political cartoons.