WASHINGTON — With Oklahoma's senators effectively sidelining themselves, the Senate failed Monday to advance an Oklahoma City magistrate past a Republican blockade and toward confirmation to a federal appeals court.
U.S. Magistrate Judge Robert E. Bacharach likely will now have to count on President Barack Obama to win re-election to be confirmed to the 10th U.S. Circuit Court of Appeals. The procedural vote to advance his nomination was 56 to 34, with only three Republicans joining Democrats and independents; 60 votes were needed under the procedural test.
Sens. Tom Coburn, R-Muskogee, and Jim Inhofe, R-Tulsa, voted “present,” a tactic that allowed them to vote without registering support or opposition. Both senators have strongly endorsed Bacharach's nomination, and Coburn told The Oklahoman previously that Bacharach was the victim of a “stupid” custom in the Senate of stalling appeals court nominees in presidential election years.
But both chose to uphold that loosely defined custom even though the appeals court seat has been vacant for two years and Bacharach has been widely praised as well-qualified.
In the minutes before he voted, Coburn held intense discussions with Inhofe and Senate Republican leader Mitch McConnell on the Senate floor.
Just after the vote, Coburn praised Bacharach, saying in a speech on the Senate floor that he was the best appellate court nominee that he'd seen in his eight years in the Senate. He called Bacharach a “pawn” in a political game.
“It's not much different than what you see at a playground at kindergarten,” Coburn said.
Coburn offered no detailed explanation of why he didn't vote to break the filibuster, but he again condemned the practice of filibustering judges and said it should end for all noncontroversial nominees.
And he said he would push for Bacharach to be nominated again if Republican Mitt Romney wins the election.
Inhofe said in an interview that voting present was the “least offensive” of the three votes he could have made. He didn't want to vote against Bacharach, he said, but he didn't want to vote against a custom that has been used by both parties for decades. Even if he and Coburn had voted to break the filibuster, Inhofe said, Democrats would have needed two more Republicans to advance the nomination.
In brief remarks on the Senate floor, Inhofe called the situation “awkward” because of his support for Bacharach's nomination.
White House counsel Kathy Ruemmler said after the vote that Bacharach's qualifications were beyond dispute, and she noted his bipartisan support.
“The American people deserve better than this unprecedented partisan obstruction of the president's efforts to ensure a fair and functioning judiciary,” Ruemmler said.
McConnell, of Kentucky, and other Republicans defended the vote on Monday by saying that Democrats had used the same tactics in the last two presidential election years to block appellate court nominations.
“This is not about the individual who has been nominated,” McConnell said.
He said the American people should get a“timeout” on confirmations of appellate court judges and decide on Election Day which president should make the lifetime appointments.
Four being blocked
Besides Coburn and Inhofe, Sen. Orrin Hatch, R-Utah, also voted “present.” The three Republicans voting to break the filibuster were Sens. Olympia Snowe and Susan Collins, both of Maine, and Scott Brown, of Massachusetts.
Republicans also are filibustering a nominee for the circuit that includes Maine and Massachusetts. There are a total of four circuit court nominees being blocked. The circuit courts are influential because they are a step below the U.S. Supreme Court and often have the last word since the high court takes very few cases.
Bacharach has been a magistrate judge in the western district of Oklahoma, based in Oklahoma City, since 1999 and has heard more than 3,000 civil and criminal cases. He was nominated for the appeals court post by Obama on Jan. 23.
The court seat has been vacant since July 2010, when Robert Henry resigned to become president of Oklahoma City University.
The 10th Circuit Court of Appeals hears cases from Oklahoma, Kansas, Colorado, Utah, Wyoming and New Mexico.