When you get a chance, you should read my new piece for the magazine on the huge number of judicial vacancies plaguing the lower courts. The short story is that Obama has made preciously few nominations for judicial vacancies, which has left the lower court system in disarray, with almost two dozen "judicial emergencies" among the circuit and district courts. Of course, Obama isn't entirely to blame; Republicans have brought the confirmation process to a standstill, leaving dozens of nominees in limbo. Given the GOP's newfound confidence, I expect this to carry over into the next year, when Republicans have a larger minority and Democrats move to embrace their reflexive timidity.
The other possibility, as Brian Beutler notes, is for Democrats to take advantage of Republican obstruction by devoting more time to judicial nominees:
So while the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama's judicial and executive branch nominees -- particularly numerous non-controversial picks, who will have to be renominated next year.
With gridlock likely in next year's Senate, Democrats have plenty of time to vote on nominees, as opposed to the last two years, where a tough legislative schedule meant that judicial and executive-branch nominees fell by the wayside. If Democrats are smart, they can make a lot of headway toward repairing the lower courts with new judges, and staffing the executive branch.
That said, if Democrats are really interested in dealing with nominees -- or fixing the confirmation process -- they would follow Tim Fernholz's advice and begin the 112th Congress by ending the filibuster, or at least amending it to eliminate filibusters on judicial and executive-branch nominees. Republicans will protest, but it's a small price to pay for functioning courts and an executive branch that works.
-- Jamelle Bouie
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