In Blocking Tenth Circuit Nominee, Senate Republicans Set New Record for Obstruction

by Nicole Flatow

Senate Republicans voted in favor of obstruction Monday evening simply because it is July 2012, blocking an up-or-down vote on a federal appeals court nominee many of them supported.

With a vote of 56-34-3, the Senate fell short of the 60 senators needed to force a confirmation vote on Tenth Circuit nominee Robert Bacharach, who had the endorsement of both of his home-state Republican senators, was rated unanimously well-qualified by the American Bar Association and was approved by all but one member of the Senate Judiciary Committee.

This vote marks the first time that a judicial nominee reported by the Judiciary Committee with bipartisan support has been blocked on the Senate floor. It also sets a new standard for filibusters of judicial nominees.

The two Oklahoma Republican senators who have consistently expressed strong support for Bacharach were among the senators who blocked a vote Monday, both voting “present,” even as Sen. Tom Coburn said Bacharach is “exactly what we want on our court,” and Sen. Jim Inhofe called him “one of the best nominees.”

In voting against the cloture motion, senators cited the so-called “Thurmond Rule,” a myth that there is an expiration date for confirming judges, which has been dispelled by legal experts.

“The Thurmond rule is one of the reasons the Senate has become an American headache,” said a New York Times editorial previewing the vote. “There are 76 vacant federal judgeships, 32 regarded as emergencies because cases are overwhelming the existing judges. Fifteen consensus nominees are pending now. And yet Republicans, far more than Democrats did under President George W. Bush, are putting politics and ideology above a functioning judiciary system, even on noncontroversial nominees.”

Even before Sen. Mitch McConnell invoked the Thurmond Rule in June, this type of hold-up was typical for appeals court nominees. Of the five circuit court nominees confirmed this year, three were confirmed only after Sen. Reid filed cloture, even though all three of them would fill judicial emergency vacancies and were rated unanimously “well-qualified” by the ABA.

In all, Reid has now filed 30 motions to invoke cloture on Obama judicial nominees, resorting frequently to what was once an extraordinary measure just to get the vacancy rate down to 76. By this point in President George W. Bush’s first term, Senate Democrats had whittled down that number to 29 vacancies. President Obama is poised to become the first president in recent history to end his first term with more judicial vacancies than he inherited.

“The judicial vacancy rate has never been this high for this long,” White House Counsel Kathy Ruemmler said in a statement.

To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org, and click here to get involved with the ACS Judicial Nominations Issue Group.