The Obama administration is aware of the growing alarm over its inability to fill long-standing judicial vacancies. White House officials frequently voice displeasure with the pace, offer heated indictments of the GOP's stalling tactics, and occasionally threaten to circumvent the Congressional process. But for all the rhetoric, threats and critiques, even sympathetic observers acknowledge that the president is largely powerless (if not helpless) on the matter.
That's because both he and allies in Congress simply lack the tools to force the Republican Party's hand.
This past Friday, the Associated Press published a rather shocking report about just how poor Obama's record on judicial vacancies is. "Fewer than half of Obama's nominees have been confirmed," the news wire wrote, "102 out of 854 judgeships are vacant," and "forty-seven of those vacancies have been labeled emergencies by the judiciary because of heavy caseloads."
When pressed about the article's findings during Tuesday's daily briefing, however, White House Press Secretary Robert Gibbs offered only a well-trodden denunciation of the GOP's tactics.
"We have seen a lack of any sort of cooperation in moving a number of these nominees along," he said. "And look, every president and Congress of different parties is going to have some fights about this but there continue to be an absurd number of judges who have passed... unanimously out of committee that need to be considered quickly by Congress."
Whether Gibbs could have said more and to what effect is debatable -- underscoring, in its own way, the scope of the problem the White House faces. Noticeably absent from his response, for instance, was an overt threat to appoint a justice or two during the remaining week of Congressional recess.
"I can't look into my crystal ball and tell you what's ahead," he said, when asked about exercising that president power.
That may be because few inside the Democratic Party see recess appointments as a viable alternative. While the parliamentary maneuver allows the White House to circumvent congressional confirmation, it would only allow the appointee to serve for a limited time period -- a restriction that, as one progressive judicial activist put it, "abandons the notion about why you have lifetime appointments in the first place."
Nor did Gibbs press Senate Majority Leader Harry Reid (D-Nev.) to create floor time for votes on those nominees already passed through the Judicial Committee. That's because to do so, in any sort of meaningful way, would be to essentially forfeit all additional Senate business. There are currently 17 judicial nominees (five for circuit court, 12 for district court) who have actually been passed through committee and are waiting a vote by the full Senate. Filing cloture on just a single one would spur a 30-hour window of debate. As the Center for American Progress reported in late July:
If Majority Leader Harry Reid (D-NV) were to cancel all recesses on August 1 and require the Senate to work 24 hours a day, seven days a week, doing nothing but considering judicial nominees, the last nominee would not be confirmed until well into autumn--and that's assuming that the Senate passed no bills, confirmed no other nominees, and took up no other matters for this entire period!
Progressive activists, to be sure, see a middle ground between making temporary recess appointments and filling up the Senate calendar. That involves having Democratic leadership actually force Republicans to publicly defend their opposition to unanimous consent agreements on a batch of nominees.
"The obstruction we are seeing from the Republicans is unprecedented," said Marge Baker, executive vice president at People For the American Way. "And unfortunately the only way to potentially break the logjam is to call them on their tactics. And that requires a focus and attention and persistence to work through the nominees on the calendar. Call the Republicans' bluff and see if they are willing to keep the Senate in session."
But whether the parliamentary avenues exist for this to happen is an open debate. At the very least there are some operatives in the party who worry that the GOP would be perfectly content to run out the legislative clock, 30 hours at a time, as the election approaches. Congress returns from recess on September 13 but is off once more on October 8, as lawmakers turn their full attention to their campaigns.
There is finally a somewhat informal recognition that, at the end of Congressional sessions, the White House will get a number of its nominees confirmed. But prior to the August break only five judicial appointees made it through the Senate. Currently there are 103 vacancies.