Yesterday, for the first time, a circuit court nominee reported to the floor with bipartisan support has been successfully filibustered, breaking long-standing tradition and further shattering public confidence in the ability of the Senate to function responsibly within our democratic system. This partisan action marks a new low in the politics of obstruction, hindering the process of putting judges in empty federal court seats across the country.
Oklahoma Judge Robert Bacharach was nominated for a seat on the U.S. Court of Appeals for the Tenth Circuit. He was a noncontroversial nominee, rated unanimously "well qualified" by the American Bar Association, supported by his conservative home state senators, and reported out of the Senate Judiciary Committee with overwhelming bipartisan support.
However, earlier this summer, Senate Minority Leader Mitch McConnell (R-NV) invoked the so-called “Thurmond Rule,” to delay judicial confirmations before the election. Efforts to block Bacharach were in full force Monday night. Bacharach was four votes shy of the sixty needed for cloture. Tom Coburn (R-OK) and James Inhofe (R-OK) turned their backs on Bacharach by refusing to vote in favor of the nomination and instead voted “present.” Republican Senators Scott Brown (MA), Olympia Snowe (ME), and Susan Collins (ME) voted with Democrats to end the filibuster, while Senator Orrin Hatch (R-UT) also voted present.
The blocking of Bacharach indicates that the Republican leadership has indeed drawn the line in the sand: No more circuit court judge confirmations during an election year. It also sends the message that partisan political games are more important than justice for ordinary Americans. Now people living in the Tenth Circuit, which covers the states of Oklahoma, Kansas, Wyoming, Utah, Colorado, and New Mexico, will continue to suffer a vacancy on the appellate court that hears their cases.
What does this mean for other states? Three other circuit court nominees pending on the Senate floor, and four in committee, will not be confirmed this year simply because partisan forces have decided to keep the Senate from doing its job while they wait and see what happens in November.
This compounds an overall and ongoing vacancy crisis in the federal courts. Due to a pattern of Republican obstructionism over the course of the Obama administration, only 154 of President Obama’s circuit and district nominees have been confirmed, while President Bush had seen 197 confirmations at this point in his first term. President Obama could be the first President in at least 30 years to complete his first term with more judicial vacancies than when he took office and Americans with cases in our federal courts will have to wait longer and longer to seek justice.