A showdown on the confirmation vote of a federal appellate judicial nominee, scheduled for Monday, could be a pivotal moment for how many appeals court bench spots the Senate will fill during the rest of this year.
Majority Leader Sen. Harry Reid (D-Nev.) is forcing a vote Monday afternoon on Robert Bacharach, of Oklahoma, for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.
But it is also Reid's only option for moving forward on the circuit court nominees this congressional session, as Republicans cite 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."
If Reid succeeds in getting enough Republicans votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta, Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit.
If Reid does not succeed, it would suggest Minority Leader Mitch McConnell (R-Ky.) has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.
"I think the spotlight is more on McConnell than it is on Reid," said Russell Wheeler, a Brookings Institution fellow who has watched federal judicial nominations for decades. "It's a real test of McConnell's control of his caucus."
And, of course, there could be a deal worked out before Monday afternoon's vote. In March, on the verge of a series of cloture votes on nominees, Reid and McConnell agreed to hold confirmation votes for 12 district court and two circuit court nominees at a rate of about two per week.
The Senate has confirmed district and circuit court judges at a rate of about one per week so far this year. There are 20 nominees who have been approved by the Senate Judiciary Committee, all but four on essentially unanimous voice votes, and await a vote on the Senate floor.
The Senate is only in session for 15 more weeks this year, including next week, the last before a four-week summer break that ends Sept. 10.
Last month, the American Bar Association sent a letter to Senate leaders expressing a "grave concern" for the high number of longstanding federal judicial vacancies. The group urged floor votes on three noncontroversial appellate court nominees last month.
Reid's filing of a cloture motion on Bacharach's nomination, which needs 60 votes and would allow an up-or-down vote on confirmation, could "jumpstart" the Senate on judicial deal-making, said Carl Tobias, a University of Richmond School of Law professor and nomination watcher.
"It's clear we're running out of time," Tobias said. "I do think it's pivotal, certainly in this presidential election year, especially on appellate nominees, but it will play back on district nominees, too."
Reid will need at least seven Republicans to vote for cloture, assuming he has all votes from the 53 Democrats and Independents. He could get halfway there with the home-state senators of two nominees. Bacharach and Kayatta come from states with two Republican senators who have strongly supported confirmation votes for them, Tobias said.
Those senators would "just have to buck the leadership, and that's tough to do," Tobias said.