On Monday night, Senate Democrats failed to reach 60 votes to cut off debate on the nomination of Robert E. Bacharach to the U.S. Court of Appeals for the 10th Circuit.
In a 56–34 vote, Senate minority leader Mitch McConnell (R–KY) was successful in holding a majority of Republicans together after declaring in June that the Senate should not confirm nominees to the federal circuit courts until after the election, following an informal Senate procedure known as the Thurmond/Leahy Rule. (Republicans Scott Brown, Susan Collins, and Olympia Snowe voted with the Democrats.)
There are currently 32 vacancies on classified as “judicial emergencies”—and the seat Bacharach would occupy is not among them.
The White House, The New York Times, and others clamoring about partisan politics are quick to forget that 45 Senate Democrats had no misgivings filibustering Miguel Estrada seven times back in 2003, when there could be no claim that the Thurmond/Leahy Rule was in effect and there was bipartisan support for Estrada.
Further, Senate Democrats followed the Thurmond/Leahy Rule in the months leading up to the 2004 and 2008 presidential elections, so charges that last night’s vote was an “unprecedented partisan obstruction” are misleading and unwarranted. Even Senator James Inhofe (R–OK), who supported Bacharach’s nomination, stated of the vote, “The problem…is that this will be the latest confirmation of a circuit court nominee during an election year in 20 years.”
As long as the Senate recognizes the Thurmond/Leahy Rule, it should apply the rule regardless of which party controls the White House and Senate. As Senate Judiciary Committee ranking member Charles Grassley (R–IA) quipped, “If ever there was an example of crocodile tears, this is it.”