“NO” on the Nomination of Robert E. Bacharach

On Monday (July 30), the Senate is scheduled to vote on the nomination of Robert E. Bacharach to be the United States Circuit Judge for the Tenth Circuit Court of Appeals. Although President Obama has made many objectionable judicial nominations, Mr. Bacharach’s qualifications or views are not the principal reason to oppose this vote.  Instead, the Senate leadership knows that a vote on his nomination at this time is a violation of the traditions of the Senate, and is simply taunting Republican senators to test their resolve.

What has come to be known as the Thurmond/Leahy Rule provides that the confirmation of life-time judges (especially Court of Appeals judges) should not proceed in the months immediately preceding a presidential election. The trigger date has varied over the years, but Senate Republican Leader Mitch McConnell (R-KY) was being conservative when he announced on June 13 of this year that the rule was then in effect.  The 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.

Although the practice originated with late Senator Strom Thurmond (R-SC), Democrats have a history of invoking the rule. In March of 2008, Senate Judiciary Chairman Patrick Leahy (D-VT) announced that “the ‘Thurmond Rule’ is a rule that we still follow, and it will take effect very soon here.” Senate Majority Leader Harry Reid (D-NV) echoed that sentiment by saying, “there is a Thurmond doctrine that says: After June, we will have to take a real close look at judges in a Presidential election year. June is fast approaching, I believe that is the time set forth in the Thurmond doctrine.”

It is now the end of July, meaning that, according to the Senate Majority Leader, the Thurmond/Leahy doctrine is in effect.  This is a clear test of minority rights in the Senate (rights which the majority demanded when they were in the minority), and that no senator should easily forfeit.

Heritage Action opposes a vote on Robert E. Bacharach for a life-time appellate judgeship at this time, and will include it as a key vote in our scorecard.

Related Links:
Heritage Action’s Scorecard
The Thurmond Rule Explained