NEW YORK With the Senate set to vote on just one judicial nominee as it returns to work on Tuesday, President Obama faces an uphill fight to get federal judges approved and ease a backlog of cases in the courts.
There are about 90 vacant federal judgeships, a deficit that is reverberating around the country as workloads for remaining judges build. In 37 of these vacancies, the courts have declared emergencies because of the length of vacancy and backlog of cases.
While getting the Senate to confirm judges is a perennial problem for presidents, Obama is on track to perform even worse than his predecessor, due to particular rancor in Washington and, some critics say, because the White House focus has been on other priorities.
"The question will be, over the course of Obama's first term, did he do as well as George Bush?" said Russell Wheeler, an analyst at the Brookings Institution who studies the judiciary.
About 87 percent of Bush's appointees to the bench were confirmed in his first term. Obama's confirmation rate for nominees currently hovers around 62 percent, including nominees who were recently submitted to the Senate, according to the White House.
Obama currently has about 55 judicial nominees pending before the Senate and he is likely to nominate others this fall. The pressure is building because of the presidential election next year -- getting nominees confirmed becomes increasingly unlikely as the year progresses.
If the Senate does not confirm Obama's pending judicial candidates this fall, it must agree unanimously to keep the nominations pending; if it does not, the nominations expire and the president will be forced to renominate them in 2012.
All told, about 200 appellate and district court judges were confirmed during Bush's first term. Just 97 of Obama's nominees have been confirmed to date. In other words -- he must double the rate of confirmations in the next year to reach parity with Bush -- an unlikely scenario.
The White House says it has nominated good candidates and blames Senate Republicans for the slow pace of confirmations. "Given the urgency of the judicial vacancy crisis, the President believes we must all move swiftly to address the situation," White House spokesman Eric Schultz said in an email.
Charles Grassley, the ranking Republican on the Senate Judiciary Committee, said in a speech before the August recess that the judiciary committee has held hearings on 75 percent of Obama's nominees, versus about 70 percent for Bush's nominees at the comparable time.
"It's disingenuous to say that Republicans are holding up the judicial confirmation process," Grassley said. "We will not be a rubber stamp for the president, but we will work in good faith if he sends quality, consensus nominees to the Senate for approval."
During the summer recess, the Obama administration went on an offensive, posting a graphic on a White House blog to detail what it called unprecedented delays on Capitol Hill that have thwarted its efforts to fill judicial vacancies.
The average Obama nominee to a federal district court has had to wait 103 days between a vote by the Senate judiciary committee and a confirmation on the full Senate floor, in comparison to 20 days for an average Bush appointee, the White House contends.
The administration's graphic is an attempt to show its own supporters that it is finally focusing on the judicial nominations, said Wheeler, the Brookings scholar.
"If I were a die-hard member of the Democratic base, I would be happy because it indicates that they are taking the nomination process seriously," he said.
Appointing judges is an opportunity for a president to put his stamp on the judiciary for years to come, a point not lost on either the Democratic base or their Republican opponents, and perhaps the reason for an increasingly partisan brinkmanship over judicial vacancies.
Later on Tuesday, the Senate was scheduled to vote on the nomination of Bernice Donald to the Sixth Circuit Court of Appeals. Donald was first nominated to the bench in December 2010 and renominated in January.
Donald, who was approved by the Senate judiciary committee without objections in May, is currently a federal district judge in Memphis.
The number of votes on nominees that the full Senate schedules in the first few weeks of the fall session will be a sign of how quickly it intends to move on nominations, said Carl Tobias, a professor at the University of Richmond School of Law.
In speedier times, the Senate would often vote on four or five nominees at once, he said.
"Now they dribble out of there one at a time," he said.
Including Donald, 20 nominees have been approved by the Senate judiciary committee and are awaiting a floor vote.
On September 8, the judiciary committee is scheduled to vote on 10 more nominees.
Of those, five will probably be postponed until the following week, Tobias predicted.
(Reporting by Carlyn Kolker; Editing by Eddie Evans)