Senate Republicans are growing increasingly concerned that the White House is dragging its feet in nominating judges to the federal bench, with some saying that the lack of nominees could undermine election-year GOP arguments of Democratic obstructionism.

“It’s hard to make the argument because the Democrats have an easy out then,” said Chief Deputy Whip John Thune (R-S.D.), who defeated Democrat Tom Daschle in 2004 in part by invoking the “obstructionist” argument. “To the extent that the White House is not moving them along in the process, it certainly undermines our ability to make the case that we should be getting these judges through the process approved and on the bench.”

With just 16 months left until President Bush leaves the Oval Office, there are 48 vacancies on the federal district and appellate courts, and Bush has yet to nominate judges for 24 of those seats.

“There’s a huge number of vacancies they haven’t sent any nominations up for,” Leahy said. “I’ve never seen anybody … so slow in sending up nominations.”

Emily Lawrimore, a White House spokeswoman, said the administration is “actively working to identify high-quality candidates to fill judicial vacancies” and will announce the nominees as soon as possible.

“As our work continues, we also continue to call on Congress to act on the nominees that we’ve already sent forward and provide them with fair and open hearings and swift votes by the full Senate,” Lawrimore said.

The Senate appears likely to vote this week to confirm at least one of Bush’s 10 pending nominees to the appellate courts, Jennifer Elrod, for a seat on the New Orleans-based 5th Circuit Court of Appeals, according to Judiciary Committee senators. Republicans expect her to get confirmed this week, but the fate of another 5th Circuit court nominee, the controversial judge Leslie Southwick, is up in the air.

Republicans say if Democrats continue to block Southwick and other qualified nominees, they will spotlight the “obstruction” in the run-up to the election, an issue that plays well with and energizes the conservative base. And some blame sprawling Democratic investigations into the Justice Department and other aspects of the administration for slowing down the White House’s process in finding suitable nominees.

Sen. John Cornyn, the Texas Republican who is close to the White House, blamed the “distracting” Democratic investigations. But when asked whether the lack of nominees undermines GOP arguments on Democratic obstructionism, he said: “In terms of gross numbers, that’s certainly the case. We need to get the nominees over there.”

“I think the Senate could expedite [the process], but we’ve had a fairly constant problem in getting nominees from the White House,” said Sen. Lindsey Graham (R-S.C.), who sits on the Judiciary Committee.

Judith Schaeffer, legal director of the liberal advocacy group People for the American Way, said that Republicans charging Democrats with obstructionism have to ask the question, “How can you confirm someone who hasn’t been nominated?”

Not all conservatives agree with that assessment, saying there are pending nominations that should be confirmed.
“We’ve got names now, and it’s now incumbent on Senator Leahy to get them hearings, to get them markups and get them to the floor,” said Sen. Jon Kyl of Arizona, chairman of the Senate Republican Conference.

Curt Levey, head of the conservative Committee for Justice, said Bush has done a far better job in nominating judges than earlier in the year, and criticized Democrats for falling behind in confirming judges. The average number of nominees confirmed by the Senate in the final two years of the previous three presidents has been 17, compared to the three that have been confirmed so far, Levey said.

If Bush waits until the election year to propose new judges, it could make things even harder to move all nominations through with the so-called Thurmond Rule — named after the late Sen. Strom Thurmond (R-S.C.) — going into effect.
An administration official critical of Leahy’s plan pointed to a statement the Vermont Democrat made in July of 2000, when he said, “We cannot afford to follow the Thurmond Rule and stop acting on these nominees now in anticipation of the presidential election in November.”

A Judiciary Committee aide said there are differences between the current situation and 2000, when there was a huge backlog of Clinton nominees whom Republicans refused to move. The aide said nominations could move more quickly if Bush chose judges who had the support of Democrats and had been recommended by home-state senators, which he has not done in recent cases in Virginia and New Jersey.