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Senate Filibusters Oklahoma Judicial Nominee

Citing Senate practice in an election year, Republicans filibustered the nomination of Robert E. Bacharach of Oklahoma to fill a spot on the 10th U.S. Circuit Court of Appeals.

The confirmation failed, 56-34. Sixty votes are needed to overcome a filibuster and cut off debate. The nomination received three Republican votes: Sens. Scott Brown (Mass.) and Susan Collins and Olympia Snowe, both of Maine.

Republican Sens. James Inhofe (Okla.), Tom Coburn (Okla.) and Orrin Hatch (Utah) all voted “present.”

“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,” Inhofe said before the vote.

The vote comes after Minority Leader Mitch McConnell (R-Ky.) last month called for a blockade on circuit court judges beginning in July.

The move is something the minority has historically invoked in election years. Named after the late Sen. Strom Thurmond (R-S.C.) — and alternately called 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.

“This practice, known as the Leahy-Thurmond Rule, is a custom they vigorously defended when there was a Republican in the White House,” McConnell said before the vote.

He cited efforts by Republicans in 2004 and 2008 when Democrats invoked the rule to stave off GOP nominations.

“In the name of Senate custom and practice — by which I mean the Leahy-Thurmond Rule — they pocket-filibustered several outstanding circuit court nominees in committee,” McConnell said. “It didn’t matter to our Democratic friends that these nominees enjoyed strong home-state support, including bipartisan home-state support, or that they had outstanding credentials, or that they would fill declared emergencies on our courts.”

Democrats argued that Republicans should confirm Bacharach, who both sides appear to agree is an outstanding nominee who was cleared by the Judiciary Committee last month on a voice vote.

“I hope the American people are witnessing this moment in the United States Senate happening on the Senate floor,” Majority Whip Dick Durbin (D-Ill.) said of McConnell’s speech on why Republicans filibustered Bacharach.

“Is it something about him? No. It’s all about politics, and it’s all about the presidential campaign,” Durbin said.

Bacharach has been a United States magistrate judge for the Western District of Oklahoma since 1999.

But despite his bipartisan support, enough Republicans decided to stick with their leader in order to keep the confirmation at bay.

Snowe and Collins, who voted for Bacharach, also have a home-state judge in the pipeline: William Kayatta Jr., who has been nominated for a seat on the 1st U.S. Circuit Court of Appeals. Kayatta is a nationally recognized trial lawyer who also maintains an active appellate practice. The Judiciary Committee approved his nomination in the spring.

They had hoped to confirm Bacharach in an effort to get Kayatta’s nomination to the floor.

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