Several interconnected issues are responsible for this crisis. First, is the lack of appointments. Although many had hoped and assumed that President Obama, a former law professor, would move quickly to fill the many vacancies that existed in early 2009 when he took office, he did not act as expeditiously as he could have, most likely because he was preoccupied by the financial and other crises at home and abroad.
A second cause of the delay is the result of lag time between the preliminary selection of an individual and the official nomination. This is often due to an inability or unwillingness of the senator from the nominee's home state to make or approve a selection. Additional time elapses as a result of vetting by the FBI and Justice Department, as well as by the American Bar Association's Standing Committee on the Federal Judiciary.
But by far the most significant factor in the current judicial vacancy crisis is the Senate's ongoing partisan and unconscionable delays that have prevented many judicial nominees from coming to a vote by the full Senate and led to a record low confirmation rate. To date, the Senate has confirmed fewer than half of the judicial nominees made by President Obama. By contrast, at this point in the 107th Congress, the Senate had confirmed 61 percent of Bush's judicial nominations. Currently, there are 48 pending nominations, of which 25 are waiting for a vote on the Senate floor.
In fact, a recent Brookings Institute study notes that despite a Democratic Senate majority, President Obama's appeals court nominees have taken far longer to confirm than President Bush's nominees -- an average of 202 days versus 154. As of last April, four of Obama's seven circuit appointees waited more than 180 days for confirmation. Since then, the delays have only grown. The evidence confirms that judicial nominations are being held hostage to the views of the present Senate minority which, in an unprecedented manner, is systematically objecting to floor votes whether a nominee is controversial or not. Unless 60 senators are present and will vote to close debate on a nomination, the nominee will not even come up for a vote. Strikingly, on those few occasions that cloture has been invoked, the nominees have then passed by unanimous or near unanimous votes, an indication of the arbitrariness of the delay efforts.
There is a potential means of addressing this problem, at least in the short term. The current post-election, lame-duck session offers a real opportunity to get business done. Giving nominees an up or down vote is the only way to eliminate the appearance of excessive partisanship and begin to restore the public's faith in the integrity of our judiciary and its delicate system of checks and balances.
A second part of the solution is procedural reform. Sen. Majority Leader Harry Reid (D-Nev.) has promised that filibuster reform will be high on the agenda of the new Congress, and Sen. Charles Schumer (D-N.Y.), third-ranking senator on the Democratic side, has held hearings on filibuster reform. But the mid-term elections and the diminishing of the Democrat's majority means that those interested in reform will face a daunting challenge. So that too, should be done now.
Unless and until the Senate deals with this crisis, the nation will be left with a problem that grows every day, as sitting judges grow older and retirements mount. As Attorney General Holder recently warned, "Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades." Indeed, with one-eighth the authorized seats vacant, there are more vacancies today than existed when President Obama took office.
One can only hope that a sense of bipartisan cooperation, perhaps inspired by pressure on senators from those who are most affected -- individuals, companies, and their legal representatives - as well as criticism by figures including Supreme Court Justices Ruth Bader Ginsburg and Anthony Kennedy, will lead the nation's most deliberative body to return to doing the people's work.
David M. Brodsky is a New York attorney and a member of the Board of the American Constitution Society.