Read: How conservatives won the battle over the courts
On Wednesday afternoon, senators voted by the thinnest of margins to cut off debate on his nomination. Jeff Flake, the outgoing Arizona Republican, joined all 49 members of the Democratic caucus in voting “No,” carrying through on his threat to oppose judicial nominations until he gets a floor vote on a bill to protect the special counsel’s Russia investigation.
At 1:17 p.m. the vote tally stood at 49 in favor and 50 opposed. On C-SPAN, the chyron at the bottom of the screen explained why Vice President Mike Pence was standing around with a handful of legislators on the Senate floor: “Sen. Tim Scott (R-SC) has not voted.” If he voted no, Farr’s nomination could not move forward. Though Scott’s typically a dependable GOP vote, he had previously blocked a judicial nominee for racial insensitivity.
For more than 20 minutes, Pence and a few senators waited on Scott, who was in a cloakroom off the chamber’s floor “doing homework” on the nominee, an aide told NBC. The chamber nearly emptied, though for some reason Bernie Sanders lingered at his desk, the same desk where Harry Truman sat as a senator and carved his name.
At 1:40 p.m came the final vote: “Mr. Scott, aye.”
That 50–50 tie left Pence to take the presiding officer’s chair and cast the deciding vote. After what could be the last dramatic vote before the Republicans add several seats to their majority in January, the chamber quickly moved on to other business, debating a resolution on U.S. support for the Saudi war in Yemen.
Thursday was supposed to bring Farr’s final confirmation vote, but it was abruptly postponed about an hour in advance. It was expected to come up next week—but that was before Scott announced he would vote “No.”
In July, Scott voted for cloture on the appeals-court nominee Ryan Bounds but then grew opposed to his confirmation; Scott didn’t explain his motivation, but there was controversy over Bounds’s racially charged writings when he was in college. Marco Rubio, the Florida Republican, said Scott’s opposition persuaded him as well; in the face of certain defeat, the White House withdrew the nomination.
The University of Richmond law professor Carl Tobias said that with Farr, “it could be a replay of what happened with Ryan Bounds.”
Scott announced that he will vote against Farr’s nomination late in the day on Thursday, casting doubt on Farr’s chances for confirmation in the lame-duck session. While the White House could renominate Farr in January with an expanded GOP majority in the Senate, Scott’s opposition may lead to more defections and prompt the nominee’s withdrawal, as happened with Bounds’s nomination.
Scott said his decision was driven by a Justice Department memo from the 1990s released this week that “shed new light on Mr. Farr’s activities” related to the racially charged Helms campaign. Scott said in a statement, “I am ready and willing to support strong candidates for our judicial vacancies that do not have lingering concerns about issues that could affect their decision-making process as a federal judge, and I am proud that Senate Republicans have confirmed judges at a historical rate over the past two years.”