Updated at 7:00 p.m. ET on November 29
Thomas Farr’s long wait for a federal judgeship in the Eastern District of North Carolina is approaching a Senate confirmation vote, a reward for Farr’s many years of loyal service to the Republican Party. But his prospects dimmed considerably on Thursday, when Senator Tim Scott of South Carolina, the Senate’s only African American Republican, announced that he will vote against Farr’s nomination.
Democrats have long opposed Farr, citing his “hostility and disregard” for the voting rights of African Americans. They first opposed Farr’s nomination because of his legal work for Jesse Helms, a senator best known for his vehement opposition to integration and his racially tinged campaign tactics. That was way back in 2006, when President George W. Bush first nominated Farr. Senate Democrats refused to confirm him, but then Senate Republicans in turn refused to confirm President Barack Obama’s nominees for the spot. When Donald Trump took office in 2017, he renominated Farr for the same Eastern District of North Carolina seat, which has gone unfilled for more than 12 years.
During the Obama years, Farr did not give Democrats reason to embrace him. He defended the strict voter-ID law passed in 2013 by North Carolina’s GOP-controlled legislature, which a federal appeals court struck down, saying the changes “impose cures for problems that did not exist” and “target African Americans with almost surgical precision.”
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.”
“A vote for Mr. Farr is a vote to institutionalize an ideology that believes certain American citizens have no right to vote,” said Chuck Schumer, the Senate Democratic leader. Stacey Abrams and Andrew Gillum—two black Democrats who just lost close governor’s races in Georgia and Florida, respectively—put out a statement Tuesday saying Farr helped lead a “crusade against voting rights,” establishing a “record of hostility and disregard for fundamental civil rights [that] disqualifies him for a lifetime appointment that will allow him to codify his discriminatory ideology into law.”
Theodore M. Shaw, a former leader of the NAACP’s legal arm who now teaches at the University of North Carolina’s law school, said people in the civil-rights community see a “straight-line history” in Farr’s legal record. Attorneys don’t always support the causes they represent in court, Shaw acknowledged. “But I also think that there are lawyers, and I would say I’m one of them, who have been consistently associated with a cause,” Shaw said. “In my case, I’ve been a civil-rights lawyer … Thomas Farr has been a lawyer consistently on the other side of those issues.”
If confirmed, Farr could be the first-line judge on future cases for voting and other civil rights in an area that has a significant African American population. “It’s hard for them to see a judge with that history sitting on the bench with open-mindedness and fairness,” Shaw said. “There are lots of other [potential] judges that don’t have that baggage. Why him?”
North Carolina’s two Republican senators have pushed for Farr’s confirmation and defended criticisms of his past work. Senator Thom Tillis last year said he’s “well regarded across the political spectrum and has received a well-qualified rating from the [American Bar Association], the gold standard for many members in the Senate Judiciary Committee.”
Farr has denied any role in the infamous postcard mailing during Helms’s racially tinged 1990 reelection campaign against a black Democratic challenger, when postcards were sent to 125,000 North Carolinians—mostly blacks who were eligible to vote—falsely warning that they would be charged with a crime if they tried to vote. In a civil complaint, the U.S. Justice Department charged the Helms campaign, the state GOP, and several consulting firms with violating the Voting Rights Act. According to The Charlotte Observer, Farr represented the campaign in that case but said he was not involved in planning the postcards and even said there was no reason to send postcards, regardless of their message.
Confirmation needs just a simple majority of 51 senators—or 50, with the vice president breaking the tie as he did Wednesday. That’s because Senate Democrats in 2013 deployed the “nuclear option,” breaking a nearly 40-year precedent by dropping the requirement for most appointments from 60 votes to a simple majority. GOP Majority Leader Mitch McConnell last year expanded the nuclear option to include Supreme Court nominations.
Tobias, the law professor who’s an expert on the federal judiciary, said this bitter partisan fight over a district judgeship represents a clear escalation in the Republicans’ push for a conservative federal bench. Previous presidents of both parties have generally tried to avoid confirmation battles over these lower-level federal judges, whose rulings apply only within their district and who do not create legal precedents other judges must follow. Until recently, Tobias said, district judges were valued more for their administrative competence than for their ideological dedication; a good district judge could resolve disputes and keep cases moving smoothly through the federal courts.
But the long-term trend of increasing partisanship in judicial nominations has reached an apogee, thanks to the Trump administration’s laser focus on getting more conservative (and younger) judges on the federal bench with lifetime appointments. This particular nomination may depend on Senator Scott, but regardless of what happens with Farr, the steady stream of confirmations is sure to resume come January.