After months of delay, Senate confirms 10th Circuit nominee

Todd Ruger

Legal Times

2013-02-27 00:00:04.0

The Senate voted unanimously to confirm Robert Bacharach to the U.S. Court of Appeals for the Tenth Circuit on Monday, ending a confirmation saga that had become a prime example of how Senate partisan politics has slowed down the process of filling the nation's federal courts.

With the 93-0 vote, Bacharach became the second circuit court judge confirmed this month. He is part a slate of judicial nominees left over from last Congress, which Democrats in the Senate Judiciary Committee have been quickly pushing through to the full Senate.

Bacharach, currently a magistrate judge in the Western District of Oklahoma, waited more than a year after his nomination for the vote. He was first eligible for a full confirmation vote in May, more than 290 days ago. Republicans filibustered his nomination in July, however, even though Bacharach had wide support.

Senator Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, said "the federal courts are diminished" every time the Senate delays confirmations only to have such lopsided votes to confirm the judges, because then "they appear to be mixed up in politics."

Because of the filibuster, "the people of Oklahoma, Colorado, Kansas, New Mexico, Utah and Wyoming have been needlessly denied his services as a Tenth Circuit judge for seven months," Leahy said.

In July, it was a vote on Bacharach's nomination that led one Democratic senator to accuse Republicans of a "political game," while a Republican senator compared the Senate to a kindergarten playground.

Back then, despite strong support by both Republican senators from his home state of Oklahoma, Republicans successfully turned away Bacharach's confirmation, which needed 60 votes to overcome the GOP filibuster. He got 56.

Republicans were holding firm on a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule." Republicans repeatedly referred to it as the "Leahy/Thurmond Rule" to connect it with Leahy, the rule's most frequent user, according to the Congressional Research Service.

Among those who did not vote to break the Republican filibuster: Senator Jim Inhofe, R-Okla., who had introduced Bacharach to the Senate Judiciary Committee. Inhofe was one of the three senators who voted "present" during that July vote. He spoke on the Senate floor after Monday's vote and called Bacharach his "best friend."

At the time of the filibuster, Senator Tom Coburn, R-Okla., compared the Senate to a kindergarten playground, saying that all this did was delay Bacharach's eventual confirmation. Either Obama would be elected and Bacharach would be confirmed, or Coburn would fight for Bacharach to be on the court under a Republican administration, Coburn said at the time. "He's exactly what we want on this court," he said.

Todd Ruger writes for The Blog of Legal Times, a Daily Report affiliate.