WASHINGTON — A federal court nomination for Maine that has been stuck in election-year limbo may soon move forward, or at least that’s the hope of Maine’s two senators.

The U.S. Senate has scheduled an initial vote on a judicial nominee from Oklahoma for Monday. If the nomination of Robert Bacharach proceeds without obstruction, it could lead to a later vote on Cape Elizabeth lawyer William Kayatta Jr.

Kayatta was nominated by President Obama for a judgeship on the 1st Circuit Court of Appeals back in January and was endorsed by the Senate Judiciary Committee three months later. Maine’s two Republican senators, Susan Collins and Olympia Snowe, have strongly endorsed him.

But Kayatta, Bacharach and more than a dozen other nominees for federal court seats have been in a holding pattern due to an unofficial rule often invoked by the minority party before a presidential election.

Known as the “Thurmond Rule” after the late Sen. Strom Thurmond, R-S.C., the rule says that the opposition party will block votes on Circuit Court judges within six months of the election, although the rule has not been universally applied.

The idea is that because presidents nominate who should fill those influential seats, the out-of-power party blocks approval in hopes that voters will give the power to pick judges back to its side. Both parties have invoked the Thurmond Rule over the years, as evidenced by the fact that Republicans sometimes refer to it as the “Leahy Rule” in honor of Democratic Sen. Patrick Leahy of Vermont.

Senate Minority Leader Mitch McConnell, R-Ken., invoked the Thurmond Rule earlier this summer. But Senate Majority Leader Harry Reid, D-Nev., apparently plans to test Republican cohesiveness on Monday afternoon with a scheduled “cloture vote” on Bacharach. Essentially a vote to allow a vote, cloture requires at least 60 senators and will require Reid to pick up more than a handful of Republicans.

Both Snowe and Collins have said they plan to vote for cloture and for Bacharach, given his endorsement by the committee and the fact that Oklahoma’s two Republican senators support him.

“Similarly, it remains my hope that the Senate will vote on the nomination of Bill Kayatta before the August recess,” Snowe said in a statement on Friday. “Mr. Kayatta is superbly qualified, was similarly approved by voice vote in the Judiciary Committee, has bipartisan support, and would be an outstanding addition to the 1st Circuit Court of Appeals.”

“With very little time until the August recess, it remains my hope that the Senate will confirm Bill Kayatta of Maine, whose qualifications to serve on the First Circuit Court of Appeals are equally impressive and whose nomination also has strong bipartisan support,” added Collins.

Kayatta declined to comment when reached by phone Friday evening.

The GOP’s use of the Thurmond Rule has frustrated or concerned some in the legal community (as have past uses of the rule).

In a June 20 letter to Reid and McConnell, the head of the American Bar Association urged the two leaders to allow votes on Kayatta, Bacharach and a third federal Circuit Court nominee, Richard Taranto, as well as District Court judges. The letter carefully steers clear of criticizing the Thurmond Rule or the Senate, however.

“In deference to these historical cut-off dates and because of our conviction that the Senate has a continuing constitutional duty to act with due diligence to reduce the dangerously high vacancy rate that is adversely affecting our federal judiciary, we exhort you to schedule votes on these three outstanding circuit court nominees this month,” wrote William Robinson III, the bar association’s president.

Washington Bureau Chief Kevin Miller can be contacted at 317-6256, or at:

kmiller@mainetoday.com

 

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