The maintenance of an effective appointment process for federal judges is important because adequate staffing is critical to the function of the judiciary. Appointment delays and prolonged vacancies create a shortage of judges. A shortage of judges in turn contributes to case backlogs that make it extremely difficult for courts to administer justice in a timely manner. By many accounts, however, the appointment system does not work well. Because of the power of federal judges to decide important constitutional questions in particular, presidents and congressional leaders spar over the “qualifications” of judicial nominees, with the Senate frequently refusing to confirm even remarkably well-qualified candidates entirely because of perceived ideological differences.

The present is a particularly important time for filling judicial vacancies because the 2012 presidential election is only about a year away, and the appointment process slows down considerably during election season. So, how are the President and the Senate doing?

Not well. A September 19 report from the American Constitution Society shows that 93 of 875 federal judgeships are vacant—nearly 11%. Over a third of those vacancies are considered “emergencies” because of the extent of the case backlog in the relevant district or circuit, or because of the combination of the extent of the backlog and the length of the vacancy.

Another noteworthy aspect of the ACS report compares the confirmation success rates of Presidents Obama, Bush, and Clinton. In terms of the total number of confirmations, President Obama has not fared as well as either of his predecessors. To date, he has filled 94 vacancies. In contrast, by the same points in their presidencies, President Bush had filled 145 vacancies and President Clinton 161. President Obama has also fared poorly in terms of confirmation percentage, with only 62% of his nominations receiving confirmation. In contrast, the Senate confirmed 74% of President Bush’s nominations and 84% of President Clinton’s.

The ACS report suggests that judicial vacancies present a growing problem. Much of the media coverage focuses on apportioning blame, but perhaps a more fruitful discussion would focus on process design. Are there alternative appointment models that could alleviate political gridlock while retaining the current system’s responsiveness to popular political forces? Undoubtedly a tough question, but certainly worth asking.