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While a lot of the judicial confirmation news coming out of Washington, D.C., of late could at best be described as disappointing, there was some positive news recently.
South Carolina Republican Sen. Tim Scott announced he would oppose the confirmation of Thomas Farr to serve as a federal judge for the Eastern District of North Carolina, effectively blocking appointment of President Trump’s controversial nominee to the post.
The opposition by Scott, the Senate’s only African-American GOP member, was significant because combined with the opposition by Arizona GOP Sen. Jeff Flake and the Senate’s 47 Democrats and two independents, it means there now aren’t enough votes to confirm Farr, an attorney from North Carolina, to the vacant judgeship. Senate Republicans, who control the chamber, had already announced before Scott’s announcement that they were postponing a final vote on Farr’s nomination. Now it looks like there won’t be a vote — at least not now.
Farr’s nomination to fill the judgeship — still the longest vacant on the federal bench — had been vigorously opposed by civil rights groups, who rightly claimed that Farr’s defense of North Carolina laws found to have discriminated against African-Americans, plus his past participation in voter suppression activities in the state, should disqualify him from serving on the federal bench.
According to The Associated Press, state GOP lawmakers hired Farr and his firm to defend the congressional and legislative boundaries they drew and approved in 2011 — some of which a federal court later struck down as racial gerrymanders. Farr also went to court to defend the state’s 2013 election law that mandated a photo ID to vote, reduced early voting and eliminated same-day registration during early voting. The 4th U.S. Circuit of Appeals later overturned the law, claiming it targeted black voters “with almost surgical precision.”
It was, however, Farr’s past involvement in longtime Sen. Jesse Helms’ re-election campaign in 1990 — a campaign that, according to a U.S. Justice Department probe, employed racist dirty tricks — that apparently convinced Scott to oppose his confirmation.
According to the AP, the Justice Department of President George H.W. Bush discovered that about 120,000 postcards were sent to voters, most of whom were black, before the 1990 election between Helms and his Democratic opponent, former Charlotte Mayor Harvey Gantt, whom Helms would go on to defeat. The postcards informed recipients that they could be prosecuted and sentenced to up to five years in prison for voting in a precinct where they hadn’t lived for at least 30 days.
That piece of racist trickery obviously isn’t the law, and Farr, who served as an attorney for Helms’ re-election effort in that election, claimed during his testimony before the Senate Judiciary Committee recently that he was “appalled” when he found out that it had happened. Farr further claimed he had never been consulted about the postcards and had played no role in their development or distribution.
But a Justice Department memo from 1991 suggests Farr knew more about the postcards than he claimed. According to the AP, the memo indicates Farr met with Helms campaign officials and told them that a “postcard mailing” like one used during the senator’s re-election campaign in 1984 “would not be particularly useful.” Farr was apparently referring to an 1984 campaign mailer, also sent to African-American voters, that the AP said included an endorsement of Helms by a black preacher and an address correction request that made it easier to challenge a voter’s eligibility should it be returned undelivered.
Scott cited the 1991 Justice Department memo in announcing his opposition to Farr’s confirmation. And it’s clear why he is disturbed by it. The memo shows that, at the very least, Farr wasn’t truthful with the Senate Judiciary Committee. At worst, it shows his involvement in explicit voter suppression. Helms’ opponent in 1990, Gantt, was an African-American. So it should be obvious why black voters were sent the postcard “warning” them about voting in the wrong precinct: Helms’ campaign believed the ploy might intimidate enough of them not to try and vote, thereby increasing the senator’s re-election chances.
Republicans who support Farr’s confirmation, including North Carolina’s Sen. Thom Tillis, say he’s being treated unfairly. But we think he’s already gotten more consideration than he deserves. There are plenty of other conservative lawyers or judges President Trump can pick and get confirmed to this important judgeship. That will be particularly true once the new Senate is sworn in in January and Republicans increase their currently narrow two-seat majority to six seats.