Judicial appointments: A lesson in packing ONE of the most popular sports in Washington is the partisan flip. When the White House or congressional chambers change hands, the two parties swap aggrieved accusations that the other is playing unfair. Exactly that has happened with the Senate minority's habit of filibustering or delaying the president's judicial nominations. On Tuesday June 4th Barack Obama nominated three judges for the court of appeals for the District of Columbia Circuit - a very important court, second only to the Supreme Court, which hears many cases touching on government or national security. In doing so, he all but dared the Republicans to filibuster them, thus setting up a showdown over the filibuster itself. Republicans have dragged out or stopped the confirmation of many of Mr Obama's judges. Although he confirmed about as many judges in his first term as George W. Bush did, he had many more vacancies to fill. As a result, the number of vacancies climbed. They rarely reached 50 during Mr Bush's tenure, but were regularly around 100 in Mr Obama's first term. Meanwhile, according to the Judicial Conference, a panel of senior judges that oversees court policy, 33 "judicial emergencies" exist in the country: courts where the volume of annual case filings, numbering in the hundreds, is out of control. Democrats, when in the minority, filibustered some of Mr Bush's nominees to the high courts, just as Republicans have done to Mr Obama's. The difference, according to Caroline Fredrickson of the liberal American Constitution Society, is that Republicans have slowed or stopped confirmation of ordinary trial (district) judges. These do not have nearly the influence the appeals-court judges above them have, but only 85% of Mr Obama's district nominees have reached the bench, compared with 98% for Mr Bush. Mr Obama has been inexplicably slow to nominate judges. But when he has, Republicans have used filibuster threats or, more quietly, have arranged that the judge's home-state senator fails to return the so-called "blue slip" approving the judge. By Senate tradition, that omission amounts to a veto. So Democrats have a fair complaint that Republicans have taken the traditional skulduggery over judges to a new level. That is the background to Mr Obama's unusual decision to nominate three judges at once to the DC court of appeals. All three have impressive credentials; indeed, with lifetimes of writing and client advocacy behind them, Republicans could doubtless find some ground to object to any one of them. To object to all three, however, would make them appear to be obstructing for obstruction's sake. Before the nominees were announced, Charles Grassley, the ranking Republican on the Senate Judiciary Committee, accused Mr Obama of "packing" the court. He has instead proposed a bill cutting three judgeships from the court, distributing two to other busy appellate circuits. He and other Republicans cite the lower caseload numbers for the DC circuit. But the other circuits are heavily burdened with drug and immigration cases; the complexity of the DC circuit's cases makes it unique. Each party howls that the other wants to "pack" the courts, but it is Mr Grassley's bid to eliminate three vacancies which Mr Obama would otherwise fill that looks most like an attempt to rig a court in an unashamedly partisan direction. If Republicans filibuster Mr Obama's nominees, a showdown over the filibuster itself will follow. Harry Reid, the Democrats" leader in the Senate, has threatened to use his majority to end the filibuster for presidential nominees. A filibuster needs 60 out of 100 votes to defeat it; an ordinary vote just 51. This would probably cause the Republicans, in retaliation, to wreak havoc in all other areas of Senate business. A legal think-tank close to the president's party has published a paper suggesting that filibustering judicial nominees is unconstitutional. It was written in 2003 by four scholars affiliated with the conservative Federalist Society, defending Mr Bush's right to an up-or-down vote on judges. Then, it was Republicans threatening to "go nuclear" and eliminate the filibuster. Today Carrie Severino, the head of the conservative Judicial Crisis Network (and affiliated with the Federalist Society herself), says that in principle each judge should get an up-or-down vote, if both parties play by the same rules. But she will not go as far as to call for an end to the possibility of a filibuster. Neither party can bear to give it up when it is in the minority. In 2005 a "Gang of 14" moderate senators found a compromise to end the impasse. It is not clear that there are 14 moderates left today.