WASHINGTON — Robert E. Bacharach, an Oklahoma nominee with strong bipartisan support for a seat on a federal appeals court, may not clear the Senate by the end of the month, meaning he would have to go through the entire confirmation process again next year.
Sen. Tom Coburn, R-Muskogee, said “inside politics” may prevent a full Senate vote and that both parties were to blame.
Bacharach, 53, a federal magistrate judge in Oklahoma City, was nominated by President Barack Obama for the 10th U.S. Circuit Court of Appeals last January.
Bacharach, who was endorsed by Coburn and Sen. Jim Inhofe, R-Tulsa, sailed through the Senate Judiciary Committee in early June, but Republicans refused to allow a full Senate vote on him before the presidential election.
When Senate Majority Leader Harry Reid tried to force consideration of Bacharach in late July, Republicans blocked the move, hoping that Republican Mitt Romney would win the presidency and make his own judicial picks.
Since Congress has returned to work after Obama’s re-election, a few nominees for U.S. district courts have cleared, but there has been no agreement to vote on the four pending nominees for circuit courts, which are more politically sensitive because they are a step below the U.S. Supreme Court.
Coburn said in an interview that part of the delay stems from historic precedent: The Senate hasn’t confirmed a circuit court nominee in a postelection period — known as a lame-duck session — for decades.
Moreover, he said, Reid has been insisting that judges be voted on in pairs. Coburn said Reid wants Bacharach’s nomination paired with a circuit court nominee who doesn’t have the same level of support.
Coburn said both sides were using nominees as pawns.
“We’re in a game,” Coburn said. “We’re not in a process.
“They’re thinking about politics. They’re not thinking about the country; they’re not thinking about the judicial system.”
A Senate Democratic leadership aide said there was no truth to Coburn’s assertion that Reid was trying to pair Bacharach with another nominee; he said Democrats would move Bacharach’s nomination by itself if Republicans would allow it.
“If we were given the green light, we would gladly move him through the process,” the aide said.
The objection from Republicans, he said, was to moving circuit court nominees in a lame-duck session.
In remarks earlier this month, Sen. Patrick Leahy, D-Vermont, the chairman of the Senate Judiciary Committee, said Republicans are wrong in claiming there’s a precedent for allowing circuit court nominees to languish during lame-duck sessions.
There were no lame-duck sessions after the presidential elections in 1984, 1988, 1992 and 1996, Leahy said. After the presidential elections of 2000 and 2008, he said, there were no nominees on the calendar.
In a postelection session in 2002, a year when there wasn’t a presidential race, the Senate confirmed 20 nominees of President George W. Bush, including three circuit court nominees, Leahy said.
What’s unprecedented, Leahy and others have said, is for Republicans to block a nominee like Bacharach, who was nominated by a Democratic president and has strong support from his home-state Republican senators.
The seat for which Bacharach has been nominated has been vacant for 2½ years. By the end of the month, there are expected to be two other vacancies on the 10th Circuit Court.
The current Congress is set to adjourn in the next two weeks, and nominees not cleared would have to be resubmitted.
Jessica Brady, a spokeswoman for Leahy, said that going through the process again for some nominees will delay work on new nominees for months.
“We’re still pushing to get everybody through,” she said.
Brady said she wasn’t familiar with Coburn’s contention that Reid was seeking votes on circuit court nominees in pairs, though that has been the pattern with district court judges in the past few weeks.
Attorney Glenn Sugameli, who tracks the judicial process for the Washington-based Judging the Environment Project, said it was “insane” that a nominee like Bacharach, “who is absolutely unopposed,” can’t get a vote.
“Is there any reason not to vote on him now?” Sugameli said. “There is no reason.”
A spokesman for Senate Republican leader Mitch McConnell said he didn’t know which nominees Reid would schedule for a vote in the few remaining days of this Congress. The Democratic leadership aide said Republicans hadn’t allowed any of the circuit court nominees to be scheduled.