WASHINGTON -- Hiring a federal judge requires an act of Congress, but Congress hasn't been in much of a hiring mode lately.
Consider the case of Edward Chen of San Francisco.
After President Barack Obama appointed the first Latina to the U.S. Supreme Court, he wanted to make history in California, nominating Chen to become the first Asian-American federal judge in the state's Northern District.
Asian-Americans applauded, and Democratic Sen. Dianne Feinstein boasted of his record, "I do not believe there is a spot, a blemish, a wart on his record as a magistrate."
But Senate Republicans saw one big problem: For 16 years, Chen had been a zealous advocate, working as a staff attorney for the American Civil Liberties Union of Northern California. And another of the president's nominees, Dolly Gee of Los Angeles, had once been a member of the group.
"I think we're seeing a common DNA run through the Obama nominees, and that's the ACLU chromosome," said Alabama Sen. Jeff Sessions, the top-ranked Republican on the Judiciary Committee, who voted against Chen.
As judicial nominations pile up on Capitol Hill, the Senate is at loggerheads, with Democrats and Republicans busy blaming each other for the delays.
Since Obama took office, the Senate has confirmed only four of his nominees for circuit and district courts. Thirty-five states now have 96 judicial vacancies, and another 24 are soon expected.
"It makes the Senate look foolish, and I wish my colleagues would allow these people to move quickly," Democratic Sen. Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, said last week, adding that the failure to act is "a dark mark on the Senate."
California finds itself in the middle of the fight.
Eleven of Obama's nominees -- including Chen, Gee and two others from the Golden State -- have been approved by the Judiciary Committee but have yet to be voted on by the full Senate.
Judicial nominations are oftentimes approved by unanimous votes in committee, but Chen's nomination passed 12-7 on a straight party-line vote.
"It was quite shocking," said Vincent Eng, deputy director of the Washington-based Asian-American Justice Center. "We have a lot of judges stalled, for a variety of different reasons. Sometimes we don't even know why they're stalled because senators can put a hold on them."
The situation has become particularly severe in California's Eastern District, headquartered in Sacramento, where judges are handling the heaviest workloads in the nation, based on case filings per judge. They're struggling to keep up, relying on outside help to keep the justice system churning.
Last year, district judges from around the country came to help out with hundreds of cases -- from Los Angeles and Oakland, from Alaska, Alabama and Washington. With so much work, civil litigants are facing average delays of 42 months from the time a case is filed until a verdict is reached.
And despite persistent pleas for help, Congress has not created a new permanent judgeship for the district since 1978.
"The situation in the Eastern District is unacceptable -- the courts are overloaded and justice is being delayed," said Feinstein, a member of the Judiciary Committee.
In many ways, it's a replay of days gone by. During George W. Bush's presidency, Republicans routinely accused Democrats of holding up votes on conservative judicial nominees. Now Democrats say Republicans are trying to thwart Obama's more liberal picks in an attempt to score political points.
Leahy said vacancies are now "at near record levels," and he accused Republicans of slowing the process by threatening filibusters and "dragging out, delaying, obstructing and stalling."
Republicans counter by saying that confirmations are not a race and that careful scrutiny is required, particularly because federal judges serve lifetime terms. They point out that Bush's nominees from 2001 had to wait years in some cases before they got confirmed. And they note that the Judiciary Committee was tied up for months this year with a Supreme Court nomination and that the White House has been slow to recommend judges because it has been preoccupied with other things, including two wars, a recession and a massive health care overhaul.
Republicans say that after nine months in office, Bush had nominated 60 judges, while Obama has nominated only 23.
"You know, it is not possible for the Senate to confirm a nomination until the president has nominated someone," Sessions said.
The plight of the California judges has elicited much sympathy from Feinstein and Barbara Boxer, the state's junior Democratic senator, but not much yet in the way of results.
Like Leahy, Feinstein blames the GOP.
"Some Republicans may object to creating new judgeships while President Obama is in the White House," Feinstein said. "This line of thinking is incredibly shortsighted and completely ignores the dire need for additional judgeships. This should not be a partisan issue."
In 1990, Feinstein said, Democrats and Republicans worked together to pass a bill creating more judgeships, even though Democrats knew that Republican President George H.W. Bush would be filling the positions. But Feinstein said she has been unable to get any Republicans to sign on to legislation recently to create more judgeships around the country, even though the bills would have benefitted constituents of the GOP senators. A bill backed by Feinstein and introduced by Leahy last month would create 15 new judgeships for California and nearly double the number of judges in the Eastern District, from six to 11.
Part of the reason that judicial confirmation proceedings take so long is that both parties pore over every public statement and speech they can find involving a nominee.
Senate Republicans outlined a litany of concerns against Chen, including positions he took in litigation and statements he made. Critics said that Chen's history raised questions about whether he could impartially apply the law.
-- In 1989, he wrote a letter to the New York Times saying that English-only laws are "based on false, xenophobic assumptions." And he opposed anti-affirmative action proposals and injunctions against gang members and private-sector drug testing.
-- Speaking at a graduation ceremony in 2005, Chen described a funeral where the congregation sang "America the Beautiful," and he described his "own feelings of ambivalence and cynicism when confronted with appeals to patriotism." He said too many Americans have suffered too much injustice and inequalities "that prevent far too many Americans from enjoying the beauty extolled in that anthem."
-- And in 2005, he told the California State Bar that the slow response to Hurricane Katrina may have been due to racism: "Would the response have been different had the majority of victims been white and middle class rather than poor and black?"
Chen, a 1979 graduate of the UC Berkeley School of Law, declined to be interviewed. But he has plenty of defenders.
Edwin Prather, president of the Asian Pacific Bar of California and a former clerk for Chen, said senators who oppose Chen are looking at "only a small fraction of the picture," focusing on his years as an ACLU lawyer instead of his eight-year record as a magistrate judge.
"They're focusing on a prior career ... which is a little weird to me," he said. "Maybe the point here is to send a message that you don't want ACLU candidates, but this is the most qualified person we have here in this district. He came out of a bipartisan selection group."
And he said he hopes his good friend doesn't become a victim of Washington's intensely partisan politics.
"He would be the first Asian district court judge in the 150-year history of the district," Prather said. "He will be the first, a historic first in this district. And maybe it's not intended to have the effect of keeping an Asian-American off the bench, but that's exactly what it's doing. ... In our mind, it's completely unacceptable."