- The Washington Times - Monday, July 30, 2012

Senate Republican leaders on Monday delivered a major blow to President Obama’s ability to fill high-level federal judicial openings, making good on a threat to block votes on circuit court nominations until next year.

Minority Leader Mitch McConnell of Kentucky used a filibuster to thwart the nomination of Robert E. Bacharach for the Denver-based 10th Circuit Court, arguing that high-level lifetime judicial appointments shouldn’t take place during the final months before a presidential election.

Mr. Bacharach received wide bipartisan praise in recent weeks, including from his home-state GOP senators, Oklahoma’s Tom Coburn and James M. Inhofe. Mr. Coburn last week called the nominee a “stellar candidate” who should be confirmed.

But Mr. McConnell invoked the so-called Thurmond Rule on the grounds that GOP presumptive presidential nominee Mitt Romney may win the White House and appoint his own judicial candidates.

The tradition dates back to 1968, when the Senate successfully blocked President Johnson’s nomination of Justice Abe Fortas to be chief justice. The practice became known in the early 1980s as the Thurmond Rule after the late Sen. Strom Thurmond, South Carolina Republican.

Mr. Bacharach’s nomination failed by a vote of 56 to 34, falling short of the 60 needed to overcome the filibuster and proceed toward a final vote. In a highly unusual move, three GOP senators — Orrin G. Hatch of Utah, Mr. Coburn and Mr. Inhofe voted “present.” Three Republicans crossed party lines to support the nominee: Sens. Scott P. Brown of Massachusetts and Susan M. Collins and Olympia J. Snowe, both from Maine.

No Democrat opposed the nomination.

Judicial nominees require a simple majority of the Senate’s 100 members for confirmation. But in June, Mr. McConnell said that if Democrats tried to hold future votes on circuit judgeships that he would force a filibuster that would require 60 votes to break — a task that the Senate’s 53-member coalition would find difficult. The Bacharach nomination was the first such vote since his threat.

Democrats decried the move as partisan obstructionism that will strain a judicial system with a backlog of vacancies. They also said Senate Republican leaders did the same thing during the final months of President Clinton’s first and second terms.

Democrats said the McConnell-led filibuster was the first time in Senate history a judicial nominee that cleared the committee with bipartisan support has been blocked on the floor. Mr. Bacharach was approved on a voice vote by the Senate Judiciary Committee in June.

“The American people need to understand that Senate Republicans are stalling and filibustering judicial nominees supported by their home state Republican senators,” said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat. “What they are doing now is a first.”

But Republicans, who often call the tradition the “Thurmond-Leahy Rule” because the Vermont Democrat supported the tactic during the George W. Bush administration, accused Democrats of holding a double standard on the issue.

Democrats “prefer to waste valuable time on a vote that they have argued for many years shouldn’t take place this close to a presidential election,” Mr. McConnell said. “Now that there is a Democrat in the White House, they refuse to follow past practice.”

The Democrat-controlled Senate has confirmed 30 of President Obama’s 42 circuit court judge nominations since he took office in January 2009 — a confirmation rate of 71 percent, the Senate Judiciary Committee’s Democratic office says. The chamber also confirmed 126 of his 158 district court judge nominations, a rate of 80 percent.

In contrast, during the same period of President George W. Bush’s administration, the Senate confirmed 66 percent of his circuit court judge nominations and 92 percent of district judge nominees, the committee said.

During the same period of the Clinton administration, the chamber approved 79 percent of circuit court and 81 percent of district court nominees.

Mr. Inhofe said that while he regards Mr. Bacharach as a highly qualified candidate, he must respect Senate precedent.

“If we have a 20-year precedent that was put in there by the Democrats and Republicans alike, I really wouldn’t want to be the one to break that precedent,” the Oklahoma Republican said.

Mr. Inhofe also said it was “suspicious” of Democratic leadership’s timing for holding the vote so late in legislative year.

Senate Majority Leader Harry Reid said Monday that Mr. Bacharach’s nomination likely would be the last vote on a circuit court nomination this year.

Mrs. Snowe said she was “deeply concerned” by the Nevada Democrat’s announcement because it presumably would block another judicial candidate, Bill Kayatta of Maine — “who is also highly qualified and has bipartisan support” — from receiving an up-or-down vote this year.



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