Republican senators' effort to fill what looks to be the nation's oldest federal judicial vacancy narrowly advanced out of the Senate Judiciary Committee on Thursday along party lines.
The battle over the judicial vacancy in North Carolina's Eastern District began more than a decade ago, when the seat became open on Dec. 31, 2005. President George W. Bush nominated Thomas Farr to fill the slot in 2006, but Farr was never processed by Senate Democrats. Republicans subsequently blocked both of former President Barack Obama's nominees — who Democrats note were both African-American women — to fill the vacancy.
After President Trump nominated Farr again, the Republican-controlled Senate Judiciary Committee voted 11-9 on Thursday to send Farr's nomination to the full Senate.
California Sen. Dianne Feinstein, the Judiciary Committee's top-ranking Democrat, voted against Farr on Thursday and noted the opposition of the AFL-CIO, NAACP, and Congressional Black Caucus.
"The Congressional Black Caucus believes that Mr. Farr's elevation to a lifetime seat on the federal bench would be a grave disservice to millions of North Carolinians who rely on the courts to uphold critical legal rights and protections," the CBC wrote to Feinstein and Senate Judiciary Committee Chairman Chuck Grassley last month. "Through his work, Mr. Farr has carved out a position for himself as the pre-eminent attorney for North Carolina Republicans seeking to curtail the voting rights of people of color."
Grassley, who voted in favor of Farr's nomination Thursday with all of his GOP colleagues, said Farr "is an accomplished attorney with experience as a law clerk, as counsel in the U.S. Senate, and in private practice." Farr, a shareholder at the law firm Ogletree Deakins, received the American Bar Association's rating of "well qualified" when nominated in 2006.
Before entering private practice, Farr worked as a lawyer at the National Right to Work Legal Defense Foundation. In private practice, Farr has focused on issues of workplace safety, employment litigation, and constitutional law. He has argued before the U.S. Supreme Court, federal appeals and district courts, and North Carolina courts.
Aside from the longstanding partisan wars over the vacant seat, Farr's nomination has become wrapped up in the battle over the Judiciary Committee's "blue slip" practice.
Those senators have historically had the opportunity to block the president's nominee from receiving a Senate Judiciary Committee hearing and vote, but that could be about to change.
On Thursday, Feinstein raised the history of Farr's nomination in the war over the blue slip practice. Feinstein highlighted Republicans' use of the blue slip tool to keep North Carolina's Eastern District federal judgeship vacant during the Obama years.
"President Obama nominated not one, but two different women to fill this seat. Neither of those women received two blue slips from both of their home state senators so their nominations did not proceed," Feinstein said. "I mention this because it's important to be honest about how my colleagues regularly used blue slips during the last administration. This is the prerogative of home state senators. Democratic senators should not be treated worse than Republican senators were."
Feinstein added that the use of the blue slip practice against Obama's nominees was not the reason for her opposition to Farr.
Despite Feinstein's plea, many in the conservative legal community are clamoring for the elimination of the blue slip tool to bypass Democratic obstruction.
Amid pressure from conservatives to confirm Trump's nominees, Majority Leader Mitch McConnell pledged this month to eliminate the blue slip tool. McConnell's gesture appeared designed to shift the blame for existing vacancies toward the Judiciary Committee.
Grassley's office responded by saying he was still determining how to apply the "blue slip courtesy" for federal judicial nominees, as has "always" been done at the discretion of the Judiciary Committee chairman. At the time of McConnell's pledge to scrap the blue slip procedure, Grassley spokesman Taylor Foy pointed out that the full Senate had confirmed fewer than half of the nominees the Judiciary Committee sent to the full chamber.
While Republicans consider multiple options about how to overcome Democrats' opposition to Trump's judicial nominees, Democrats appear organized in their resistance. Every Democratic member of the Judiciary Committee voted against Farr's nomination on Thursday and Democrats also delayed for a week committee votes on two federal appeals court nominees.