To grasp how the long partisan war over the Senate’s judicial confirmation process shapes the nation’s legal landscape, look no further than this week’s floor vote on Thomas Farr to sit on a federal district court in North Carolina.
If confirmed — something that appears uncertain in a narrowly divided Senate — Farr would fill the oldest judicial vacancy in the country in a part of North Carolina with a significant black population. The Eastern District of North Carolina seat has been open for nearly 13 years — and three presidents — because of the Tar Heel State’s contentious politics and the way senators have used traditions to block nominees.
The nomination is among the most contentious of President Donald Trump’s judicial picks because Farr’s past work is entangled with the national debate over voting rights laws and access to the polls.
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Senate Minority Leader Charles E. Schumer and other Democrats, as well as black lawmakers and civil rights groups, want to keep Farr from the bench. Among other criticisms, they point to how the Raleigh-based lawyer, who is white, defended in court North Carolina’s voting laws that judges later struck down as discriminatory for targeting minorities “with almost surgical precision.”
President Barack Obama’s nominees for the seat, both of whom would have been the first black federal judge in the district, were blocked by Republicans through a tradition that gave home-state senators a de facto veto over district court nominations, the so-called blue slip tradition.
Senate Democrats twice blocked President George W. Bush’s nominee for the same vacancy on the bench — the same Thomas Farr now set to get a floor vote a dozen years later.
Civil rights advocacy groups and the Congressional Black Caucus contrast Farr’s history with minorities in the Eastern District and the country who depend on the federal courts to uphold civil rights, particularly in the context of Trump’s slate of judicial nominees that is short on racial diversity.
“Bringing diverse experiences and perspectives to the bench allows judges to make better informed decisions and increases public confidence in our justice system,” said Vanita Gupta, president of The Leadership Conference on Civil and Human Rights. “But this administration has done what no recent administration has done — and rejects the need for diversity in our federal courts.”
North Carolina’s Republican senators, Thom Tillis and Richard M. Burr, have defended Farr as well regarded across the political spectrum and rated “well-qualified” by the American Bar Association. Farr often represented Republicans in North Carolina and worked on issues of constitutional law, employment law and worker safety.
Tillis said Tuesday that the criticism raised by Democrats is “covered ground.” Farr, he said, was asked to defend a North Carolina law with provisions that fall short of other state election laws that are still on the books.
“It’s basically downsized Kavanaugh tactics as far as I’m concerned,” Tillis said, alluding to Democratic opposition this fall to Justice Brett M. Kavanaugh that Republicans criticized as unfairly attacking the nominee’s character.
There are signs that Farr’s confirmation might be defeated even with Republicans holding a 51-49 majority. The Senate Judiciary Committee last advanced Farr’s nomination to the floor in January, but Senate Majority Leader Mitch McConnell has prioritized other judicial nominees since then.
Schumer said all Senate Democrats oppose Farr’s nomination. With Arizona GOP Sen. Jeff Flake pledging to vote against all judicial nominees until there is a floor vote on a bill to protect the special counsel investigation into Trump campaign ties to Russia in the run-up to the 2016 election, just one more Republican vote would sink Farr’s nomination.
Opponents pin some of their hopes on South Carolina Sen. Tim Scott, the Senate’s lone black Republican, who in July opposed the nomination of Ryan Bounds of Oregon to the U.S. Court of Appeals for the 9th Circuit, based on racially tinged writings by Bounds in college. Bounds’ nomination, which was on the cusp of a floor vote, was instead withdrawn.
Scott said Tuesday he would not comment on Farr’s nomination.
District of Columbia Democratic Del. Eleanor Holmes Norton said Tuesday the Congressional Black Caucus was not sure about the votes of Republican senators Marco Rubio of Florida, who joined Scott’s opposition to Bounds, and Lisa Murkowski of Alaska, a moderate.
“We hope that these members among others will not want to taint their record and those of Republicans in the Senate by voting for Thomas Farr,” Norton said.
Democrats including California Sen. Kamala Harris went to the floor Tuesday to oppose the nomination for what they say are years of work against voting rights. Democrats also accuse Farr of working with GOP Sen. Jesse Helms while he was in office to suppress the black vote in North Carolina.
Farr was the “chief cook and bottle washer” for North Carolina Republicans’ efforts to disenfranchise minority voters, and his confirmation would cut “against the very thing that generations of soldiers have died for, the right of democracy, the right to vote,” Schumer said Tuesday.
“Every senator here, including our Republican friends, should be disturbed that Mr. Farr has been involved, often directly, in multiple attempts to disenfranchise minority voters,” Schumer said.
There are four federal judicial spots in the Eastern District, and North Carolina has the fewest number of black judges of any state in the south. “That is an absolute embarrassment,” said North Carolina Democratic Rep. G.K. Butterfield, whose seat is in that judicial district.
Schumer said what “sticks in the craw” is that the Senate is voting for Farr only because Republican senators blocked Obama’s nominees when Democrats were in the majority and still respected the Judiciary Committee’s blue-slip process.
Republicans have relaxed that tradition for appeals court judges now that Trump is in office, among other changes to streamline the judicial confirmation process.