Unconfirmed: The Neverending Vacancy

When Judge Malcolm Howard took senior status on December 31, 2005, the 66-year-old Reagan appointee likely expected a successor to be appointed in a matter of months.  Today, over twelve years later, Howard’s seat on the U.S. District Court for the Eastern District of North Carolina is still vacant, the longest district court vacancy in U.S. history.[1]  The story of this vacancy spans three Administrations and three failed nominations, as well as involving the ugly specter of racism and politics in the “new south.”

Let us start off with two facts: first, the Eastern District of North Carolina, which covers 44 counties from Raleigh into the North Carolina coastline, has one of the highest percentage of black residents in the nation, with over 25% of the population being African American;[2] second, the Eastern District of North Carolina has never had a single African American judge.[3]  North Carolina’s relative paucity of African American federal judges relates partly back to Sen. Jesse Helms, the notoriously conservative senior senator from North Carolina.  Over his thirty year tenure, Helms oversaw the nominations of 15 district court judges and three appellate judges from North Carolina, only two of whom were black.  As such, by the time that Howard moved to senior status, many felt that the Eastern District of North Carolina was overdue for an African American judge.  However, President George W. Bush’s nominated Thomas Alvin Farr, a 52-year-old white private practice attorney from Raleigh.

Farr’s nomination came before a Democratic-controlled Senate on January 9, 2007, alongside the nominations of Thomas Schroeder, William Osteen Jr., and Martin Reidinger to fill three other North Carolina vacancies.[4]  The Senate confirmed Osteen and Reidinger on September 10, 2007, and confirmed Schroeder on December 14, 2007.  However, despite having the strong support of North Carolina senators Elizabeth Dole and Richard Burr, Farr received neither a hearing nor a vote.  In the 2008 elections, two simultaneous actions killed Farr’s hope of confirmation: first, Illinois Senator Barack Obama, a Democrat, was elected to be the new President of the United States; second, Dole was defeated for re-election by Democrat Kay Hagan.

Entering office with a new Democratic president, Hagan recommended three candidates to President Obama for the Howard seat: Superior Court Judges Allen Cobb and Quentin Sumner, and Assistant U.S. Attorney Jennifer May-Parker.[5]  Notably, two of the three candidates, Sumner and May-Parker, were African American.  On July 21, Burr wrote to Obama endorsing the candidacies of Cobb and May-Parker for the seat.[6]

However, despite the joint recommendations, the White House failed to put a nomination forward.  As his first term came to an end, Obama managed to place two North Carolina judges on the U.S. Court of Appeals for the Fourth Circuit, as well as two more on the District Courts.  And yet, the Administration failed to nominate anyone to the Eastern District.

Some speculated that the Administration had failed to nominate a candidate because it was looking for an African American nominee.[7]  Rep. G.K. Butterfield urged the White House to nominate an African American to the seat, noting that 26.5% of the residents under the Eastern District were black.[8]  For her part, Hagan refused to recommend any additional candidates to the White House.[9]

On June 20, 2013, four and a half years after he came to office, Obama finally submitted a nomination to the Howard seat, which had, by now, been vacant for seven and a half years.  The nominee was Jennifer May-Parker, the African American federal prosecutor recommended by Hagan and Burr in July 2009.[10]  However, despite his support for May-Parker in 2009, Burr refused to return a blue slip on the nomination.[11]  Burr declined to offer a reason for his blockade of May-Parker, but his intransigence prevented a hearing or a vote on May-Parker.  Furthermore, in the 2014 elections, Hagan lost re-election to Republican Thom Tillis.  Bowing to the political realities, the Obama Administration chose not to renominate Jennifer May-Parker in the Republican-controlled 114th Congress.

After withdrawing May-Parker’s nomination in early 2015, Obama did not submit another nomination to the Howard seat until April 2016, when he nominated Patricia Timmons-Goodson, a member of the U.S. Commission on Civil Rights and a former North Carolina Supreme Court Justice.[12]  The nomination drew a sharp response from Burr who argued that Obama had broken an agreement that would have filled the vacancy, calling the nomination an “election season stunt.”[13]  Despite criticism within his home-state,[14] Burr stuck to his stance, blocking Timmons-Goodson for the rest of the Obama administration.  Notably, in a private meeting, Burr took credit for the “longest vacancy,” touting it as an example of his frustration of the Obama Administration’s goals.[15]  Overall, Burr weathered the criticism and won re-election.  Furthermore, the election of President Donald Trump in 2016 put an end to the Timmons-Goodson nomination.

With a new Republican president and two Republican senators, the stars seemed aligned for the swift confirmation of a nominee to the Howard seat.  Sure enough, on July 13, 2017, Trump renominated Farr, over ten years after his initial nomination by Bush.  However, since then, Farr’s second nomination has bogged down over criticism of his work defending voting restrictions in North Carolina, and his alleged role in illegal voter suppression while working on the Helms campaign in 1990.[16]  As a result, Farr’s nomination has twice passed through the Judiciary Committee on narrow party-line votes, and has still not been called up by Senate Majority Leader Mitch McConnell.

Furthermore, Farr’s confirmation on the floor isn’t assured.  With Sen. John McCain frequently absent for medical reasons, McConnell has only a narrow 50-49 margin on controversial votes.  With Democrats united against Farr, McConnell cannot afford any defections if he intends to confirm Farr.  Thus, with the NAACP and other groups lobbying moderate Republicans heavily,[17] the outcome is still uncertain.  And as such, the neverending vacancy goes on, still unfilled.


[1] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[2] See Ari Berman, He Defended North Carolina’s Voter Suppression Law. Now He’s Set to Become a Federal Judge There, Mother Jones, Oct. 18, 2017, https://www.motherjones.com/politics/2017/10/he-defended-north-carolinas-voter-suppression-law-now-hes-set-to-become-a-federal-judge-there/.

[3] See id.

[4] Archive of Federal Judicial Vacancies, http://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2007/02/vacancies/pdf (last visited March 11, 2018).

[5] WRAL, Hagan Looks to Split U.S. Attorney Job, Capitol Broadcasting Company, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[6] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).  

[7] Patrick Gannon, Race, Politics Keep Judge’s Seat Empty for 7 Years, Star News, Jan. 12, 2013, http://www.starnewsonline.com/news/20130112/race-poltics-keep-judges-seat-empty-for-7-years.

[8] See id.

[9] See id.

[10] Press Release, Office of President Barack Obama, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[11] Jennifer Bendery and Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huff. Post, Jan. 8, 2014, https://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.  

[12] Press Release, Office of President Barack Obama, President Obama Nominates Eight to Serve on the United States District Courts (April 26, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[13] Press Release, Office of Sen. Richard Burr, Sen. Burr’s Statement on the White House’s Nomination for the Eastern District Judge (April 29, 2016) (on file at https://www.burr.senate.gov/press/releases/).  

[14] CBC Editorial, Burr Needs to End Political Games, Back Timmons-Goodson Judicial Appointment, WRAL.com, Oct. 5, 2016, http://www.wral.com/editorial-burr-needs-to-end-petty-political-games-back-timmons-goodson-judicial-appointment/16083659/.  

[15] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[16] See Alexander Nazaryan, President Trump is Rewarding a Lawyer Who Has Fought to Block the Black Vote with a Plum Federal Judgeship, Newsweek, Sept. 21, 2017, http://www.newsweek.com/trump-north-carolina-farr-voter-suppression-668649.

[17] See Anne Blythe, Trump’s Pick on Bench is ‘Tantamount to Hitler Wreacking Havoc’ Among Jews, NAACP Leader Says, News & Observer, Mar. 5, 2018, http://www.newsobserver.com/news/local/article203587414.html.

Thomas Alvin Farr – Nominee to the U.S. District Court for the Eastern District of North Carolina

In December 2006, Thomas Alvin Farr, a well-connected Republican attorney from Raleigh, was nominated for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  For the next two years, Farr waited for a hearing and a vote, neither of which came in the Democratic-controlled Senate.  Then, with the election of President Obama, Farr’s hopes of a federal judgeship died.  On July 13, 2017, however, President Trump revived Farr’s nomination, submitting him once again to the seat he had originally been nominated for, a seat studiously kept open by North Carolina’s Republican Senators.

Background

Thomas Alvin Farr was born in Cincinnati, OH on October 24, 1954.[1]  Farr attended Hillsdale College, a Christian liberal arts school in Michigan, graduating summa cum laude in 1976.  Farr proceeded to Emory University, graduating with a J.D. in 1979.

After graduating, Farr joined the National Right to Work Legal Defense Foundation as a staff attorney.  In 1981, upon the election of Republican senator John P. East,[2] Farr moved to Washington D.C. to serve as Counsel for the Senate Labor and Human Resources Committee.  Farr left D.C. in 1982 to serve as a law clerk to Judge Frank Bullock of the U.S. District Court for the Middle District of North Carolina.

In 1983, Farr joined the Raleigh law firm Maupin, Taylor, Ellis & Adams, P.A., working on civil litigation, with a focus on labor law.  During this period, Farr also served as a member of the North Carolina Elections Board.

In 2003, Farr and three other partners left Maupin for Haynsworth, Baldwin, Johnson & Greaves, a Greenville, SC based labor and employment firm.[3]  In 2006, Farr joined the Raleigh office of Ogletree Deakins, where he currently works as a partner.

In December 2006, President George W. Bush nominated Farr for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  Farr’s nomination came a month after Democrats took control of the U.S. Senate.  Incoming Chairman Patrick Leahy (D-VT) declined to process Farr’s nomination, despite moving and confirming three other North Carolina nominees.  Farr’s nomination was ultimately returned to the President unconfirmed.

History of the Seat

Farr has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[4]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[5]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[6]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[7]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[8]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[9]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[10] this time with the support of Burr and Senator Thom Tillis (R-NC).[11]

Legal Experience

Having been a lawyer since 1979, Farr has more experience litigating than any other nominee put forward by the Trump Administration.  The vast majority of his experience has been in the fields of labor and election law.

Labor Law

Farr has spent virtually his entire legal career in labor law, generally opposed to the positions of unions and unionized workers.  He started his legal career at the National Right to Work Legal Defense Foundation, litigating against unions and union-friendly regulation.  Furthermore, as Counsel for Sen. East, Farr worked on labor policy in the U.S. Senate.

In private practice, Farr fought claims by truck drivers seeking the rights of union membership,[12] and industrial workers seeking to take necessary measurements to file a grievance.[13]  Farr also successfully intervened in a suit blocking NLRB enforcement of its bargaining order against a pork product plant in North Carolina.[14]  He also filed suit to challenge an arbitration decision in favor of a unionized employee.[15]

Farr also filed a Supreme Court amicus brief on behalf of Helms urging affirmance of a decision holding that unions could not spend money on activities unrelated to collective bargaining.[16]

Election Law

In addition to his expertise in labor law, Farr is also known for his extensive litigation experience representing the Republican party, Republican elected officials, and conservative interests in election law litigation.[17]

Early in his career, Farr represented Sen. Jesse Helms (R-NC) and the North Carolina Republican Party in a suit challenging the constitutionality of North Carolina election laws.  The suit arose when Republican Congressman Bill Hendon lost a close election to Democrat James Clarke, and filed suit to challenge the election results, and the North Carolina straight-ticket statute.  After years of litigation, Judge David Sentelle (now on the U.S. Court of Appeals for the D.C. Circuit) found that the statute, which voided cross-over votes cast in opposition to a straight-ticket ballot, was unconstitutional, accepting Farr’s position.[18]

Following the 1990 census, Farr represented the Republican Party of North Carolina in its unsuccessful challenge against the state’s congressional map, alleging partisan gerrymandering.[19]  In 1995, Farr argued the case of Shaw v. Hunt before the U.S. Supreme Court.  The Supreme Court ended up siding with Farr on a 5-4 vote, striking down the congressional map as an unconstitutional racial gerrymander.[20]

In 2001, Farr and future U.S. District Judge James Dever once again challenged the maps drawn by North Carolina’s Democratic legislature, alleging that they were a partisan gerrymander.[21]

In contrast to his litigation against partisan gerrymandering by Democrats, Farr has defended gerrymandering by Republicans.  For example, Farr was a part of the legal team defending the North Carolina legislature’s gerrymandering of the Guilford County Board of Commissioners.[22]

Farr also defended the congressional map and state legislative maps drawn by the Republican legislature against charges that they were unconstitutional racial gerrymanders.[23]  He also defended “election reform” measures enacted by the legislature that, critics argued, would disenfranchise minority voters.[24]

Controversially, Farr’s firm was hired at taxpayer expense to defend North Carolina’s restrictive voter id law against suit by the Department of Justice, who argued that the law disenfranchised minority voters.[25]  In court, Farr argued that voter id was a “minor inconvenience” for voters.[26]  Ultimately, the appeals were dismissed by Democratic Governor Roy Cooper, and Farr was dismissed from the case.[27]

Other Representations

In addition to the cases mentioned above, Farr has defended business interests against civil rights and other actions in court.[28]  Early in his career, Farr successfully defended a railroad accused of promoting white candidates over an experienced black conductor.[29]  Farr also successfully defended American Safety Products, Inc. against breach of contract and RICO claims,[30] as well as defending Dow Corning Corp. against wrongful termination claims.[31]

Political Activity

As may be evident from his frequent appointments by the Republican legislature, Farr is well connected in the North Carolina Republican Party and has been a generous donor to Republicans.  Through his career, Farr has donated to Sen. Lauch Faircloth (R-NC), President George W. Bush, Sen. Elizabeth Dole (R-NC), Sen. Bob Smith (R-NH), Sen. Richard Burr (R-NC), Rep. Renee Ellmers (R-NC), Rep. George Holding (R-NC), Rep. Richard Hudson (R-NC), Mitt Romney, Newt Gingrich, Speaker Paul Ryan, Sen. Thom Tillis (R-NC), and Senate Majority Leader Mitch McConnell, among others.[32]  Farr has also been a strong supporter of President Trump, donating almost $2500 to Trump’s campaign, and an additional $1100 to the Make America Great Again PAC.[33]  While most of his donations are to Republicans, Farr did donate $1000 to Rep. Mike McIntyre (D-NC) in 2009.

Overall Assessment

Both Farr’s supporters and detractors will likely turn to one-word arguments for their position.  For Farr’s supporters, the word is “qualified.”  For his opponents, it’s “partisan.”

As noted, Farr has more experience practicing law than any other Trump nominee.  With almost forty years of legal experience, including work in government, nonprofits, and private practice, Farr is certainly well qualified for a federal judgeship.

However, Farr also has a deeply partisan history.  His switch from attacking partisan gerrymanders drawn by Democrats to defending partisan gerrymanders drawn by Republicans allows detractors to paint him as a partisan ideologue.  Furthermore, his dismissal of the burdens of voter id as a “minor inconvenience” is sure to draw opposition from civil rights groups.

As a bottom line, Democrats, civil rights plaintiffs, and labor unions will argue that, given Farr’s partisan past, he cannot be fair to them in court.  Unlike his first nomination, however, this time, Farr will get a hearing to defend himself and try and put those doubts to rest.


[2] East later gained notoreity as one of the principal opponents of a federal holiday honoring Rev. Martin Luther King, Jr.  Frances Romero, A Brief History of Martin Luther King Jr. Day, Time, Jan. 18, 2010, http://content.time.com/time/nation/article/0,8599,1872501,00.html.

[3] Kim Nilsen, Eillis [sic] Leaves Maupin Taylor & Ellis, Triangle Business Jrnl., Mar. 24, 2003, https://www.bizjournals.com/triangle/stories/2003/03/24/daily11.html.

[4] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[5] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[6] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[7] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[10] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[11] Press Release, Burr and Tillis Welcome Nomination of Thomas Farr as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[12] Joyner v. Abbott Labs., 674 F. Supp. 185, 188 (E.D.N.C. 1987).

[13] N.L.R.B. v. Am. Nat. Can Co., Foster-Forbes Glass Div., 924 F.2d 518, 520 (4th Cir. 1991).

[14] N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir. 1995), supplemented, 81 F.3d 25 (4th Cir. 1996).

[15] Bandag, Inc. v. Local 922, United Steel Workers of Am., No. 5:96-CV-450-BR3, 1996 WL 943527, at *1 (E.D.N.C. Dec. 20, 1996), aff’d sub nom. Bandag, Inc. v. Local 922, 121 F.3d 697 (4th Cir. 1997).

[16] Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 745, 108 S. Ct. 2641, 2648, 101 L. Ed. 2d 634 (1988).

[17] See, e.g. Wesley Brown, Hudson and Jackson Exchange Blows in Senate Race, The Free Press, Oct. 15, 2010 (noting that while representing Sen. Brent Jackson, Farr sent a cease-and-desist letter to his Democratic opponent, alleging untruths in his ads).

[18] Hendon v. N. Carolina State Bd. of Elections, 633 F. Supp. 454, 462 (W.D.N.C. 1986).

[19] Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.), aff’d, 506 U.S. 801, 113 S. Ct. 30, 121 L. Ed. 2d 3 (U.S. 1992).  See also Shaw v. Hunt, 861 F. Supp. 408, 417 (E.D.N.C. 1994), rev’d, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (U.S. 1996).

[20] Shaw v. Hunt, 517 U.S. 899, 902, 116 S. Ct. 1894, 1899, 135 L. Ed. 2d 207 (U.S. 1996).

[21] Stephenson v. Bartlett, 180 F. Supp. 2d 779, 781 (E.D.N.C. 2001).

[22] NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections, 858 F. Supp. 2d 516 (M.D.N.C. 2012).

[23] Harris v. McCrory, 159 F. Supp. 3d 600, 604 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455, 197 L. Ed. 2d 837 (U.S. 2017). See also  Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211, 198 L. Ed. 2d 655 (U.S. 2017).

[24] League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 230 (4th Cir. 2014).

[25] N. Carolina State Conference, of the NAACP v. McCrory, 156 F. Supp. 3d 683, 686 (M.D.N.C. 2016).

[26] Ken Otterbourg, Closing Arguments Given in Key Voter Rights Trial, N.Y. Times, Feb. 2, 2016.

[27] Taft Wireback, Law Firm Disputes Dismissal from NC Voter ID Case, Greensboro News & Record, Feb. 21, 2017, http://www.greensboro.com/news/government/law-firm-disputes-dismissal-from-nc-voter-id-case/article_fc41ca4c-139e-5faf-9232-a5785ca01aba.html.

[28] See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 290 (4th Cir. 2009); Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995); Mumford v. CSX Transp., 878 F. Supp. 827, 829 (M.D.N.C. 1994), aff’d sub nom. Mumford v. CSX Transp., Inc., 57 F.3d 1066 (4th Cir. 1995).

[29] Miller v. Seaboard Sys. R.R., No. C-85-1156-R, 1986 WL 15502, at *1 (M.D.N.C. Dec. 23, 1986).

[30] Grantham & Mann, Inc. v. Am. Safety Prod., Inc., 831 F.2d 596, 598 (6th Cir. 1987).

[31] Riley v. Dow Corning Corp., 876 F. Supp. 732, 733 (M.D.N.C. 1992), aff’d, 986 F.2d 1414 (4th Cir. 1993).

[32] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=Thomas+Farr (last visited Aug. 17, 2017).