Breaking Ranks on the Thurmond Rule

Posted July 27, 2012 at 5:36pm

The Thurmond Rule, the unwritten Senate tradition of the minority party blocking circuit court nominees within six months of a presidential election, will be tested today with a procedural vote on Robert E. Bacharach of Oklahoma to fill a spot on the 10th U.S. Circuit Court of Appeals.

Bacharach has the support of his home-state Senators, Republicans James Inhofe and Tom Coburn, and both of Maine’s GOP Senators said they would buck leadership and vote to cut off debate on his nomination.

“I will vote to proceed to the nomination of Robert Bacharach for the 10th Circuit because he is a highly experienced and well-qualified nominee who deserves confirmation,” Sen. Susan Collins (R-Maine) told Roll Call on Friday.

“I will vote to invoke cloture on the nomination of Richard Bacharach of Oklahoma to be a federal judge on the 10th Circuit Court of Appeals because he is highly qualified, having earned the American Bar Association’s highest rating of Unanimously Well Qualified; was approved by voice vote in the Judiciary Committee; and his nomination has bipartisan support, including previous support of his home state Senators,” Sen. Olympia Snowe (R-Maine) said Friday.

Their comments come after Minority Leader Mitch McConnell’s (R-Ky.) call last month for a blockade on circuit court judges beginning in July. Monday’s vote will be the first test of his edict.

This isn’t the first time Collins and Snowe have defied the blockade. Last month, they told a Maine newspaper, the Falmouth Forecaster, that they would not abide by the edict when it came to President Barack Obama’s pick of William Kayatta Jr. of Maine for the 1st Circuit.

Named after the late Sen. Strom Thurmond (R-S.C.) — and referred to as the “Leahy Rule” by some Republicans after Judiciary Chairman Patrick Leahy (D-Vt.) — the doctrine holds that within six months of a presidential election, the opposition party can, and typically does, refuse to allow votes on circuit court judges.

“Each side reinterprets [the Thurmond Rule] every election year,” said Carl Tobias, a constitutional law scholar at the University of Richmond. “The party out of power thinks it’s going to win, and each [judicial] seat you fill is one your opponent can’t. That is the dynamic going on.”

Republicans say they are following  the precedent set by Democrats, who cut off circuit court nominees in June 2004 and 2008 but continued confirming district court nominees into the fall.

“The issue is how the Leahy-Thurmond rule was perfected under Democratic leadership of the Senate during the last two presidential election years,” a Senate GOP aide  said. “In 2004 and 2008, no circuit nominees — consensus nominees, or not — were confirmed after June.”

The move did not sit well with some GOP Senators with judges in the pipeline.

Bacharach — who has been a U.S. magistrate judge for the Western District of Oklahoma since 1999 and before that was in private practice with Crowe & Dunlevy in Oklahoma City — is an example.

But even with the support of Collins and Snowe, it is unclear how Coburn and Inhofe will vote, although they have publicly said they are in favor of the nomination.

A Coburn spokesman said the Senator would make up his mind on how to vote today. Efforts to ascertain Inhofe’s plans were unsuccessful.

The vote comes after attorneys who represent Oklahoma with the American Bar Association wrote to Coburn and Inhofe asking them “(1) to use your considerable influence within the Senate to urge leadership of both parties to schedule a floor vote on Judge Bacharach’s nomination before the August recess and (2) to publicly announce your willingness to vote to end any filibuster preventing a vote on the merits of the nomination if necessary.”

Bacharach is a noncontroversial nominee, according to Democrats and GOP supporters, and the Judiciary Committee approved his nomination by voice vote last month.

“On the merits, Bacharach is not controversial,” Tobias said.

The vote also holds implications for Kayatta’s nomination.

Both Collins and Snowe have been advocating for a vote on Kayatta, and if Bacharach is confirmed it could ease his path.

“With very little time until the August recess, it remains my hope that the Senate will confirm Bill Kayatta of Maine, whose qualifications to serve on the 1st Circuit Court of Appeals are equally impressive and whose nomination also has strong bipartisan support,” Collins said.

“Mr. Kayatta is superbly qualified, was similarly approved by voice vote in the Judiciary Committee, has bipartisan support and would be an outstanding addition to the 1st Circuit Court of Appeals. I have strongly supported Bill’s nomination from day one and will continue to work with the Senate leadership in an effort bring his nomination to the floor,” Snowe said.

Democrats, who control 53 seats, will need seven Republicans to reach the 60 votes to overcome a filibuster.

Along with the four possible votes from the Oklahoma and Maine delegations, another potential GOP vote is Sen. Lisa Murkowski (Alaska), who has voted to overcome judicial filibusters in the past.

Other possible GOP votes include Arizona Sens. Jon Kyl and John McCain, who last month voted for the confirmation of Andrew Hurwitz to the 9th Circuit, going against the party grain.

Republican Sens. Dick Lugar (Ind.), Scott Brown (Mass.) and Lamar Alexander (Tenn.) also voted to cut off debate on the Hurwitz nomination and could vote to advance Bacharach. Hurwitz was the last circuit court nominee to be confirmed by the Senate.

Along with Kayatta, another possible consensus nominees is Richard Taranto for the Federal Circuit, according to Tobias. The Judiciary Committee approved his nomination by voice vote in March, with only Sen. Mike Lee (R-Utah) voting “no.”

“In the past, consensus nominees have been confirmed late into the year,” Tobias said.

The conservative Heritage Action for America opposes Bacharach’s moving forward and said last week it would “key vote” the cloture vote.

“The [Thurmond] rule both preserves an incoming president’s right to present nominees for open positions, and ensures a lame-duck president cannot — with the help of a lame-duck Senate — load up the federal courts with cronies and ideologues,” the group said in a release.