The Senate effectively shut down the process for confirming new federal appeals court judges on Monday, at least until after the election.
Republicans blocked the confirmation of Robert Bacharach for a spot on the U.S. Court of Appeals for the Tenth Circuit. Bacharach, currently a magistrate judge in the Western District of Oklahoma, was non-controversial and supported by both of the Republican senators from his home state.
"This is not about the individual who has been nominated," Senate Minority Leader Mitch McConnell (R-Ky.) said on the Senate floor in a debate. McConnell instead called the block part of a Senate tradition for "a bipartisan timeout" before the Nov. 6 presidential election.
Bacharach’s nomination needed 60 votes to overcome the Republican filibuster. He got 56. Sen. Jim Inhofe (R-Okla.), did not vote to break the filibuster on a candidate whom he had introduced to the Senate Judiciary Committee, where he received strong bipartisan support and an almost unanimous vote.
Inhofe, who was among three senators who voted "present" during Monday night’s vote, called this vote "awkward." Bacharach's confirmation vote would have been the closest to an election of a circuit court judge in 20 years, he said. It was not immediately clear which other senators voted present.
The White House decried the block of Bacharach and said nearly one in eleven federal judgeships stands empty, and the judicial vacancy rate has never been this high for this long. "The American people deserve better than this unprecedented partisan obstruction of the President’s efforts to ensure a fair and functioning judiciary," White House Counsel Kathryn Ruemmler said in the statement.
The block showed McConnell has the political clout in his party to hold firm on a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule." Republicans repeatedly referred to it as the "Leahy/Thurmond Rule" to connect with the rule’s most frequent user, according to the Congressional Research Service, Sen. Patrick Leahy (D-Vt.).
Sen. Dick Durbin (D-Ill.) called it a "political game," and was "evidence of a dysfunctional Senate." "This is a good man and a good candidate for this spot," he said.
The vote dims the hopes of other federal appellate court nominees considered to be highly qualified and non-controversial: D.C. lawyer Richard Taranto, nominated for the Federal Circuit; and Maine lawyer William Kayatta Jr., nominated for the First Circuit. who has received support from both home state Republican senators.
Another circuit court nominee, Patty Shwartz for the Third Circuit was approved by the Judiciary Committee along party lines and has been waiting for a floor vote since March 8.
Even if Bacharach had been confirmed Monday, the window was apparently shut for consideration for these other nominations. "This will be our last circuit court judge,"Reid said on the Senate floor earlier in the day. "It’s too bad, but that’s the case."
Reid’s office clarified the statement later, saying he meant there would be no more circuit court confirmation votes before the election. "We do hope to consider other circuit nominees after the election, during this Congress," spokesman Adam Jentleson said in an email.
Sen. Jeff Sessions (R-Ala.) said that the nominees would likely not have a problem getting confirmed if President Barack Obama wins re-election.
After the vote, Sen. Tom Coburn (R-Okla.) compared the Senate to a kindergarten playground, saying that all this did was delay Bacharach’s eventual confirmation. Either Obama will be elected and Bacharach will be confirmed, or Coburn will fight for Bacharach to be on the court under a Republican administration. "He’s exactly what we want on this court," Coburn said.