While Elena Kagan could serve on the Supreme Court for decades, there are about 100 vacancies for lower court judges who will similarly serve lifetime appointments. That's roughly one-eighth of the federal judiciary, and the lower court judges that President Obama appoints will collectively have a far greater impact on Americans than any single Supreme Court justice.
But so far, the Senate has confirmed only 37 of Obama's judicial nominees, a little more than half as many as during the same period of time under President Bush.
Sen. Kay Hagan (D-NC) last week went to the Senate floor to beg for a confirmation vote on two nominees from her home state. James Wynn and Albert Diaz were both voted out of the Senate Judiciary Committee six months ago for positions on the 4th Circuit Appeals Court. The vote for Wynn was 18-1; the vote for Diaz was unanimous.
"These fine men have the support of both myself and my [Republican] colleague from North Carolina, Sen. [Richard] Burr," Hagan said.
Senate Minority Leader Mitch McConnell (R-KY) then stood up to explain why he won't agree to a vote on Wynn or Diaz. Obama made a recess appointment earlier this month, putting the head of Medicare and Medicaid in place without a Senate hearing or a confirmation vote.
"Given the president has been so dismissive of the Senate's right to provide advice and consent under the Constitution, I'm not inclined at this point to consent to the agreement proposed by my friend from North Carolina," McConnell said.
These delays infuriate Senate Judiciary Committee Chairman Patrick Leahy (D-VT). "I've never seen anything like this in 36 years in the Senate," Leahy recently said on the Senate floor. He spoke just before the Senate unanimously voted to confirm Judge Sharon Coleman — three months after her unanimous committee vote.
"No Republican senator on the Judiciary Committee voted against this nomination," Leahy said. "There are another dozen judicial nominations on the Senate's executive calendar that were reported by the Judiciary Committee with no objection, but they remain stalled by a Republican refusal to consent to final Senate action."
Cries of obstruction are a constant in the Senate, and Republicans and Democrats each cite their own statistics to show that the other party is at fault.
For example, Robert Alt of the Heritage Foundation says Democrats have no basis to complain, because Obama has nominated far fewer judges than Bush during the same period. Obama has nominated 84, compared to Bush's 107.
"Judges just don’t appear to have been a priority either for the White House or for Leahy and [Majority Leader Harry] Reid in the Senate," Alt says.
While Bush gave speeches and held Rose Garden events to push his judicial nominees, Obama has been far less aggressive. One White House official defended that strategy, saying: "Is the idea that if the president does a YouTube address, Mitch McConnell will suddenly give consent? That seems a little ridiculous."
Democrats have been able to use their large majority to accomplish a lot in Congress, but confirmations are one area where Senate rules give Republicans enough power to have a substantial impact. Unless Republicans grant unanimous consent, senators must spend days debating a judicial nominee before a vote. That's true even without a filibuster. Democrats would rather spend those days on financial regulation, unemployment insurance and other legislative priorities.
Rachel Brand, who oversaw judicial nominations during the Bush administration, says if there is a problem here, it is one of Reid's choosing. "He has lots of things he wants to get done, and he has very few days on the calendar, so he has to prioritize," Brand says. "It may not be worth his time, in his view, to spend any number of hours on a district court nominee as opposed to, say, financial regulatory reform."
White House spokesman Robert Gibbs rejects that argument. "I don't think this is because we're doing financial reform; I don't think this is because we're doing the Recovery Act," Gibbs said at a recent White House briefing. "I think there's a strategy by those [Republicans] not to process those judges."
Lately, Republicans have been letting more judges through than they did in Obama's first year. But Nan Aron of the group Alliance for Justice says it's not enough.
She wants Democrats to get tough.
"If Republicans want to bring cots in and sleep overnight, so be it," Aron says. "But I think it's high time for Democratic leadership to schedule votes and start filling some of these vacancies around the nation."
There is time pressure. Virtually everyone expects that Democrats' Senate majority will shrink in November. After that, it will be much harder for them to force anything against the Republicans' will.