President's Judicial Nominees Being Treated More than Fairly

Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Committee on the Judiciary
The Nomination of
Robert E. Bacharach, to be United States Circuit Judge for the Tenth Circuit
Monday, February 25, 2013

Mr. President,

I rise today in support of Robert E. Bacharach, nominated to be United States Circuit Judge for the Tenth Circuit. Mr. Bacharach's nomination was pending before the Senate last year. In accordance with Senate custom and practice, the nomination was placed on hold, along with other circuit judge nominations, pending the outcome of the 2012 presidential election. Unfortunately, the nomination was subjected to some unnecessary political theater when a cloture motion was filed and defeated last July.

It is well-known that the practice and tradition of the Senate is to stop confirming circuit judge nominees in the closing months of a presidential election year. One has to go back 20 years to find a presidential election year when the Senate approved a circuit court judge in the latter part of the year. Of course, the rationale has been that whoever wins that election should be the one to pick these lifetime nominees who will run our judiciary system.

A Congressional Research Service report on this subject stated:

"The Senator who most frequently has asserted the existence of a Thurmond Rule has been the current chairman of the Judiciary Committee."

The Congressional Research Service report noted that on March 7, 2008, the Chairman recalled:

"When President Reagan was running for President and Senator Thurmond, then in the Republican minority as ranking member of the Judiciary Committee, instituted a policy to stall President Carter's nominations. That policy, known as the "Thurmond Rule," was put in when the Republicans were in the minority. It is a rule that we still follow, and it will take effect very soon here."

Again, this was in March of that Presidential election year, not June or July. So that rule was very carefully laid out March 7, 2008 -- that they didn't intend to approve any more nominees after that point.

CRS went on to note the strong support the Majority Leader has expressed for the so-called Thurmond Rule. According to CRS:

"Senator Harry Reid, the Senate majority leader, has expressed agreement with Senator Leahy about the existence of a Thurmond rule. In April 10, 2008, floor remarks, Senator Reid said,
"In a Presidential election year, it is always very tough for judges. That is the way it has been for a long time, and that is why we have the Thurmond Rule and other such rules."

Five days later, the Majority Leader said:

"You know, there is a Thurmond doctrine that says: After June, we will have to take a real close look at judges in a Presidential election year."

These quotes indicate not only the expectation, but in fact a support for slowing down and cutting off the confirmation of judges in a Presidential election year.

Even setting aside the so-called Leahy-Thurmond Rule, by any objective measure, President Obama has been treated fairly.

For example, with regard to the total number of confirmations, we confirmed 171 district and circuit nominations during President Obama's first term. We also confirmed 2 Supreme Court nominations during President Obama's first term. When Supreme Court nominations are pending in the committee, all other work on nominations is put on hold.

The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during that term the Senate confirmed a total of only 119 district and circuit court nominees.

Let me put it another way. Under similar circumstances -- when Supreme Court nominees were considered -- the Senate confirmed 52 more district and circuit nominees for President Obama than for President Bush.

During the 2008 presidential election year, the Senate confirmed a total of 28 judges - 24 district and 4 circuit. During the 2012 presidential election year the Senate greatly exceeded those numbers, having confirmed a total of 49 judges -- 44 district and 5 circuit. In fact, President Obama's confirmations during the 2012 election year exceed the previous five presidential election years.

Furthermore, President Obama has the highest percentage of circuit confirmations over the past four presidential terms. With regard to district confirmations, President Obama had more during the 112th Congress that in any of the previous 8 Congresses, going back to 1994.

So those who say that this President is being treated differently either fail to recognize history, or want to ignore the facts, or both.

With regard to today's nomination, I would like to say a few words about the nominee. I expect he will be approved, and congratulate him on his confirmation.

Judge Bacharach graduated from University of Oklahoma with a B.A. in 1981 and earned his J.D. from the Washington University School of Law in 1985. Upon graduation, Judge Bacharach served as a law clerk from 1985 to 1987 to the Honorable William J. Holloway, Jr. on the U.S. Court of Appeals for the Tenth Circuit. After completion of his clerkship, he was hired as an associate at Crowe & Dunlevy, where he became a shareholder in 1994. He remained at the firm until becoming a United States Magistrate Judge in 1999. At Crowe & Dunlevy, he primarily practiced in commercial litigation, focusing on antitrust and franchise litigation. He also handled a considerable number of cases involving the Employee Retirement Income Security Act from 1996 to 1998.

From 1997 to 1999, Judge Bacharach served as an adjunct professor of law at the University Of Oklahoma School Of Law. During this period, he was a co-instructor for a class titled, "Civil Pretrial Litigation."

In 1999, the U.S. District Judges for the Western District of Oklahoma appointed Judge Bacharach to be a United States Magistrate Judge. As a Magistrate Judge, he manages all aspects of the pre-trial process in civil and criminal cases: conducting evidentiary hearings, ruling on non-dispositive motions, making reports and recommendations regarding dispositive motions, and issuing criminal complaints, search warrants, and arrest warrants.

Source