The New Republic

Last time I visited the question of judicial nominations, there were 50 district court and six court of appeals vacancies for which Barack Obama had not even nominated anyone. That was two months ago. Today? District court vacancies without a nominee have reached 53; circuit court vacancies without a nominee are up to 9.

Why? No idea. Yes, Republicans are obstructing judicial (and exec branch) nominations in the Senate. Why shouldn't they? After all, Obama has signaled again and again that he doesn't really care about them. Yes, Harry Reid could have pushed harder to move these nominations to a floor vote, but it seems to me that judicial nominations are much more of an issue for presidential constituencies, not Congressional constituencies. In other words, the Senate isn't particularly likely to push hard on them unless the president makes it a priority. Obama, no question about it, has not. Every week that goes by in which he doesn't even bother to nominate anyone for all those openings is a week in which he signals to Senators that his administration just doesn't care very much about the courts.

Not that the Senate is doing a very good job. By my count, five appeals court nominees and twelve district court nominees are ready for floor action; one (Jane Stranch, for the 6th circuit) is scheduled for action when the Senate returns, but the rest remain in limbo. Which leaves 22 waiting for the Judiciary Committee to clear them.

One more culprit: liberal interest groups. Where's the outcry from feminists? From the civil rights community? From gay rights activists? From labor, for that matter -- labor put a lot of effort into NLRB picks, with good reason, but the truth is that a full slate of Obama-selected circuit court picks could easily be more important over time than the NLRB on labor issues. The same goes for issues surrounding torture, detention, and privacy -- even if some advocates in those areas are skeptical of Elena Kagan, they still should be pushing for at least the nominees they like to be confirmed, and for more in that vein to be selected. Instead of what Obama is presenting them with now, which is in far too many cases nothing at all. As I said, judicial nominations are probably more of an issue for national constituencies than for local ones, and if those national constituencies don't squawk, well, that could explain some of the president's (and the Senate's) apparent lack of concern.

The important thing to remember here is that this is in one important respect unlike Democratic obstruction while George W. Bush was president: right now, and throughout this 111th Congress, every one of Barack Obama's nominees probably has the votes to be confirmed. And I'm not talking about 50 votes plus Joe Biden; I'm talking about the Senate gold standard, 60 votes, enough to beat a filibuster and invoke cloture. Of course, that hasn't been tested on the remaining nominees, but I'm confident that there's no one nominated who would lose the votes of Snowe and Collins...in fact, I think there's a solid bloc of somewhere between 62 and 65 votes for cloture for any scandal-free liberal nominee. I believe that's true across the board; it's certainly true of most of the nominees. That doesn't mean that GOP obstruction isn't a factor, but it's a factor that Harry Reid, Pat Leahy, and Barack Obama could easily overcome if they decided to make it a top priority. There's still plenty of time to confirm every single one of the current nominees if Democrats really want to do that and are willing to be as aggressive in their use of Senate rules on offense as the Republicans have (quite legitimately, for the most part, in my view) in their attempts to obstruct. They won't do it, however, unless Barack Obama sends clear signals that he wants it done. And if they don't, well, who knows what's going to happen in the 112th Senate? So, Mr. President, are you going to step up on this one?

Jonathan Bernstein is a political scientist. He blogs at A plain blog about politics.

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