Senate Republicans believe that no more judicial nominees should be confirmed for the balance of the year until the elections, citing something called the Thurmond rule, which sets an arbitrary deadline for election-year confirmations. Senate Democrats don’t believe that has been reached yet and want to continue to get judges confirmed, citing the low percentage of confirmations in the Obama first term. Republicans say Democrats practiced this in 2004 and 2008; Democrats dispute that.
This came to a head yesterday with a judge for the 10th Circuit Court of Appeals, Robert Bacharach, who was broadly acceptable to both of his home-state Senators – Oklahomans Tom Coburn and James Inhofe. Bacharach received a near-unanimous vote out of the Judiciary Committee, and yesterday he got his vote on the Senate floor. But despite bipartisan support from the entire Democratic caucus and the New England three (Scott Brown, Susan Collins and Olympia Snowe), Bacharach mustered only 56 votes, four short of what was needed to break a filibuster. Mitch McConnell led the obstructionist crusade, effectively shutting down judicial confirmations in the Senate for the rest of the year.
As for Inhofe and Coburn, they support the nominee but didn’t want to cross McConnell, so both of them voted “present” (as did Orrin Hatch, who has in the past vowed never to block a judicial nominee). Because of the 60-vote threshold, this is equivalent to a no vote. Seven other Republicans did not vote on the nominee. So Bacharach received a percentage of 62% of all votes cast in the 56-34 outcome, above the 60% threshold. But that’s not the way the Senate works, and so he was denied confirmation.
Coburn previously called the situation he tacitly endorsed as “stupid”:
Sens. Tom Coburn, R-Muskogee, and Jim Inhofe, R-Tulsa, voted “present,” a tactic that allowed them to vote without registering support or opposition. Both senators have strongly endorsed Bacharach’s nomination, and Coburn told The Oklahoman previously that Bacharach was the victim of a “stupid” custom in the Senate of stalling appeals court nominees in presidential election years.
But both chose to uphold that Senate custom, despite the fact that the 10th circuit seat has been vacant for two years and Bacharach had overwhelming support in the Senate Judiciary Committee.
Coburn always positions himself as the guy who votes his conscience no matter what custom or fashion. I guess that only matters when voting against providing resources for unsolved civil rights crimes, not phantom election-year traditions.
For his part, Inhofe said, “It’s awkward [that] one of the best nominees, Robert Bacharach, is the one that’s the subject of this thing, and I regret that’s the case.” Not enough to vote for the confirmation, but he does regret it, so you know.
It’s doubtful that we will see another judicial vote before the election. If someone like Bacharach cannot get through, it’s unclear who can.