LAHAINA, Hawaii — Almost one in eight federal judgeships is vacant in the country and legal scholars warn that the increasingly politicized confirmation process threatens the administration of justice across the nation.
Democrats and Obama administration officials accuse the Republican minority in the Senate of systematically opposing the president's nominees to prevent him from putting his stamp on the judiciary.
Republicans and conservative analysts say the stalled pace is part payback for congressional Democrats' efforts to scuttle some Bush nominees and part indifference on the part of President Barack Obama, who they say has been slow to nominate judges.
Of the 102 federal judgeships open, there are nominees pending for 39 seats.
"Republicans can't block something that's not there," said Don Stewart, an aide to Senate Minority Leader Mitch McConnell, R-Ky.
Obama's judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47 percent of 85 nominations winning Senate approval. That compares with 87 percent confirmed during the first 18 months of the previous administration, 84 percent for President Bill Clinton and 93 percent for President Ronald Reagan.
If the current rate of replacing retired, resigned and deceased judges continues, Assistant Attorney General Christopher H. Schroeder warned, nearly half of the 876 federal judgeships could be vacant by the end of the decade.
"A determined minority is skillfully navigating the process to prevent an up-or-down vote on nominees," Schroeder told a gathering of Western judges and lawyers here recently, referring to Senate Republicans.
Schroeder, whose Justice Department Office of Legal Policy helps the White House vet nominees, alluded to Senate Democrats "having gone first" in filibustering some Bush appointments. But the GOP strategy now appears to be to block Obama's choices across the board, said Schroeder.
"Their objections often are unrelated to a specific nominee. They're systematic attempts to throw sand in the works," Schroeder complained at the U.S. 9th Circuit Judicial Conference last month.
Curt Levey, executive director of the conservative lobby Committee for Justice, said neither Obama nor Senate Majority Leader Harry Reid, D-Nev., has made a priority of filling judicial vacancies.
"Republicans can't stop Reid from bringing things to a vote, but what they can do is make the majority leader pick his priorities," Levey said. He was referring to the option of invoking cloture, which allows the majority to call a vote but at the price of ceding the Senate floor for a maximum of 30 hours of debate, at the expense of other legislation sought by the administration.
Obama has been taking longer to make nominations than Bush, said Russell Wheeler, a Brookings Institution scholar who studies the selection of U.S. judges. Obama has taken an average of 325 days between vacancy to nomination, compared with 277 days for Bush. That might be explained in part, Wheeler said, by Obama's decision to resume having the American Bar Association evaluate potential nominees, a practice Bush abandoned.
But what was previously a politicized practice of holding up nominees to the circuit courts of appeal has "spread like a virus to the district courts," Wheeler said. Bush got 98 percent of his nominees to the federal trial courts approved at this stage in his administration, Wheeler said.
"It's important for the public to understand that the excellence of the federal judiciary is at risk," Supreme Court Justice Anthony M. Kennedy, told the 9th Circuit retreat. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."