Since President Obama arrived in the White House, the Senate has confirmed 41 of his judicial nominees.
But Republicans have raised procedural objections to many candidates, leaving 104 federal judicial spots unfilled. A few nominees have cycled through the process for a second or a third time, waiting for votes from the full Senate.
On Thursday, five of those candidates, dubbed by GOP aides as the "fringe five," came up for consideration once again before the sharply divided Senate Judiciary Committee.
Some of President Obama's choices for federal courts have been through the nomination process two or three times, without success, because of Republican objections. They include this group, known to some GOP aides on Capitol Hill as the "fringe five":
— Louis B. Butler Jr., nominated to be U.S. District Judge for the Western District of Wisconsin.
— Robert N. Chatigny, nominated to be U.S. Circuit Judge for the 2nd Circuit.
— Edward M. Chen, nominated to be U.S. District Judge for the Northern District of California.
— Goodwin Liu, nominated to be U.S. Circuit Judge for the 9th Circuit.
— John J. McConnell Jr., nominated to be U.S. District Judge for the District of Rhode Island.
Four made it through. But it's far from clear when their confirmations will be voted on by the full Senate.
Sen. Jeff Sessions (R-AL) believes Republicans sent Obama a message when they returned the nominees to the White House earlier this year.
"President Obama has nominated and now re-nominated a string of very controversial nominees," says Sessions. "For each of these nominees, Republicans have voiced very specific objections and detailed concerns. These five nominees were returned with the hope the president would consider, and yet he has persisted."
While it moved along four of the five, the committee adjourned before taking action on the other nomination, of Robert Chatigny, a candidate for the U.S. Court of Appeals for the 2nd Circuit.
These days, nothing's assured when it comes to judges and the Senate.
Judiciary Committee Chairman Patrick Leahy (D-VT) expresses frustration with what's happened to the White House's most controversial selection — California law professor Goodwin Liu.
"We have debated Goodwin Liu over and over again," says Leahy. "And at some point, we keep on debating, which allows everybody to vote, maybe. At some point we ought to do what senators are supposed to do, either vote yes or no."
Liu is only 39 years old. And he's widely mentioned as a possible candidate for the Supreme Court, if only the White House could get him on to the Court of Appeals for the 9th Circuit Court first.
It's still not clear if and when Liu will undergo consideration on the Senate floor. Time is running out before the November recess, and even the lame-duck session when Congress returns could fill up with other priorities.
Asian-American legal groups are so concerned about Liu and another California district court judge nominee, Edward Chen, that they held rallies in San Francisco and Los Angeles this week.
"We think that our representation in the federal courts is disproportionately low," says Wendy Chang, who helped plan the events. "And these two particular candidates are so exceptionally well-qualified for these positions, and they are truly reflective of our community and the American dream that so many of us lived through."
But Sen. Tom Coburn (R-OK) doubts that Liu will, as he promised, limit his legal reasoning to the outlines of the U.S. Constitution if he wins a lifetime judicial appointment.
Courtesy of Vincent Eng
A show of support, in icing.
Courtesy of Vincent Eng
"Presidential elections have consequences, and professor Liu's nomination is exactly that: a consequence of the president winning," says Coburn. "My problem with Goodwin Liu is that I believe he'll violate his oath as soon as he takes it."
Other Republicans said that Liu's speeches to progressive groups signal that his thinking is outside the mainstream.
Sen. Dianne Feinstein (D-CA) has tried to tamp down those fears.
"I spent four hours with this man," says Feinstein. "I questioned him. And he is a remarkable young man. He is strongly supported. And yet this speech or that speech is essentially likely to kill his candidacy."
Liu's supporters passed out bumper stickers and served a sheet cake with a slogan demanding his confirmation at the California rallies.
But even they said Thursday that they still don't know whether he'll make the cut in a divided Senate.