Senator Reid Launches Challenge to So-Called ‘Thurmond Rule,’ Moving to Force Vote on Tenth Circuit Nominee

by Nicole Flatow

Last month, with the judicial vacancy crisis still plaguing the federal courts, Sen. Mitch McConnell announced that he would block votes on all federal appeals court nominees until after the November election under the so-called "Thurmond Rule."

The pushback was immediate, with statements from Republicans like Maine Sens.Olympia Snowe and Susan Collins, Democrats led by Judiciary Chairman Patrick Leahy, and the American Bar Association.

“As you know, the ‘Thurmond Rule’ is neither a rule nor a clearly defined event,” ABA President Bill Robinson wrote in a letter to Senate leaders urging them to schedule votes.

But a month later, no votes have been scheduled on appeals court nominees, and Senate Majority Leader Harry Reid has launched a challenge to McConnell’s pledge by filing a motion to invoke cloture on Tenth Circuit nominee Robert Bacharach.

Bacharach is a prime example of the types of consensus nominees that have been held up by Senate obstruction. He was rated unanimously well-qualified by the American Bar Association, has the support of both Republican home-state senators, and was approved by all but one member of the Senate Judiciary Committee two months ago.

The latest explanation for holding up Bacharach and other circuit court nominees is the so-called “Thurmond Rule,” a myth that there is an expiration date for confirming judges, which has been dispelled by legal experts.

But this type of hold-up was typical for appeals court nominees long before McConnell invoked the rule in June. 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. And yet, obstructionist senators are sitting on the nominations of Bacharach and 19 others ready for an immediate Senate vote.

Bacharach has 13 years of experience as a magistrate judge, and has handled nearly 3,000 civil and criminal matters, presided over 400 judicial settlement conferences, and issued more than 1,600 reports and recommendations.

Noted conservative professor and George W. Bush appointee to the Tenth Circuit, Judge Michael McConnell, recently told The Salt Lake Tribune: “Judge Bacharach has such strong support and such a good reputation across the spectrum that I am hoping that he will be the exception that does get confirmed, even in an election year.”

We’ll find out Monday evening, when the Senate is scheduled to vote on the cloture motion. If the senators don’t instead agree to consent to a vote, 60 votes will be required to invoke cloture and force an up-or-down vote on Bacharach's nomination.