OF AMERICA'S 876 federal judgeships, 110 are vacant at present. Confirmations for Barack Obama's nominees have come more slowly than for any president in modern history. Just 46% of his choices have been confirmed by the Senate, despite the Democrats' large majority there during the first two years of his term.

Many blame the Senate Republicans for this. One of the senators' prerogatives is to put individual “holds” on a nominee, stopping the candidate's progress to a full vote on the floor. This has happened not just to left-wing radicals, but to nominees who had received not a single negative vote from either party in the judiciary committee, which votes first on a nominee. Senators can place a hold in secret, avoiding the embarrassment that such naked politicking might bring if it were known.

Republicans reject the notion that the vacancies are their fault. Russell Wheeler of the Brookings Institution, a centre-left think-tank, concurs: Mr Obama has nominated only about two-thirds as many judges as George Bush junior did in the equivalent period, he notes. This is because nominations can take time. By convention, many “presidential” nominees are first suggested by their home-state senators. With a president and a senator of opposite parties this can lead to a conflict like that between Mr Bush and Carl Levin, a Michigan Democrat, which dragged on for much of the Bush presidency.

Presidents tend to defer to senators on nominees to district courts, while more often making their own choices for the appeals (or “circuit”) courts. Nonetheless, home-state senators in effect keep a veto, known informally as a “blue slip”, over both. This can require protracted negotiations between president and senator. Mr Obama—according to members of a bipartisan panel hosted recently by the American Constitution Society to discuss the vacancies—has simply had other priorities. This included nominating two members of the Supreme Court, which is said by insiders to have distracted the entire White House counsel's office for ten weeks on each occasion.

Wherever the fault lies, the backlog is a serious problem. The Judicial Conference, the policymaking body of the federal court system, ranks 50 of the vacancies as “emergencies”. These include district judgeships with 600 or more cases filed and moving nowhere, or 700 or more filings for a circuit panel. The eastern district of California has a thousand-case pile-up. Border courts in Texas, dealing with drugs and immigration cases, are overwhelmed. The small but important district of Delaware, where many companies are incorporated, is making do with just two federal judges, causing havoc in the various commercial cases. Bill Robinson, the incoming president of the American Bar Association, says that the quality of justice inevitably suffers: “Witnesses die, memories fade.”

But the issue fails to exercise the general public—or at least, the general Democratic public. After judges seemed to get too uppity in the 1960s and 1970s, Republicans successfully turned “activist judges” into bogeymen, creating bodies like the Federalist Society to nurture conservative legal talent. And Mr Bush effectively used the bully pulpit to call for an “up-or-down” vote on all his nominees at once, leading to a confrontation but ultimately a compromise with Democratic senators in 2005. Dozens of Mr Obama's nominees are still waiting for something similar.