- Senate Republicans have vowed to filibuster Obama's nominees until after the election
- Final tally was 54-36, several votes shy of the 60 votes needed to break filibuster
- Republicans said they were invoking an informal measure known as the Thurmond Rule
In keeping with their vow to prevent any more of President Barack Obama's appeals court nominees from being confirmed until after the election, Senate Republicans successfully upheld Monday their filibuster of Judge Robert Bacharach's nomination to the 10th U.S. Circuit Court of Appeals, which is based in Denver.
The filibuster came despite praise for Bacharach from the two GOP senators from Oklahoma, where he is currently a federal magistrate judge, and the support of three centrist Republicans who voted across the aisle.
The vote was 56-34, several votes short of the 60 the Democrats needed to break the filibuster. Each Oklahoma senator, torn between their support for the nominee and their desire not to undermine their Senate leadership, voted present.
In upholding the filibuster, Republicans invoked what is known as the Thurmond Rule, named after late South Carolina Republican Sen. Strom Thurmond, a former longtime Judiciary Committee member. The informal rule, which has been practiced by both parties for decades, justifies the blocking of a president's pick for an appeals court judge months before a presidential election.
"The rationale has been that this close to an election, whoever wins that election should be the one to pick these lifetime nominees who will run our judiciary system," explained Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee.
Republican leaders signaled last month they soon would block appointments to the powerful circuit courts, which are one level below the U.S. Supreme Court. Democrats said they had hoped to get Bacharach through before the rule took affect and argued that never before had a circuit court judge who was voted out of the Judiciary Committee with bipartisan support been filibustered. Republicans disputed that point.
Senate Majority Leader Harry Reid, D-Nevada, called Bacharach "well-qualified" and lamented that the pattern of GOP filibusters would now extend to circuit court judges.
"Why should we be surprised, though?" Reid said on the floor. "We've already had 85 filibusters, so just add another one to it."
Grassley said that Democrats have used the Thurmond Rule in the past just as Republicans are now. In fact, Republicans call it the Leahy-Thurmond Rule, because they said the Democratic chairman of the Judiciary Committee, Sen. Patrick Leahy of Vermont, has invoked the rule before.
"Now they don't want us to play by the same set of rules," Grassley said. "The Democratic leadership doesn't want us to enforce the rules that they helped establish."
In addition, Grassley argued Reid knew Bacharach would be filibustered and put his nomination up for a vote anyway in an effort to paint Republicans as obstructionist.
Republican Sens. Scott Brown of Massachusetts, Olympia Snowe and Susan Collins, both of Maine, voted to end the filibuster. Republican Sen. Orrin Hatch, a longtime Republican member of the Judiciary Committee, voted present.