Sen. Tim Scott wants fellow Republicans to get smarter about judicial nominees — specifically, to stop nominating judges with questionable records on race.
The South Carolina Republican earlier this month was instrumental in blocking confirmation of a second judge in four months over concerns about how they’ve dealt with race issues in the past.
But fellow Republicans showed no immediate signs they would do anything, anytime soon, to take some of the pressure off Scott, the Senate’s only black Republican.
He is up against members of his party who don’t think any of their nominees are problematic. That includes fellow South Carolina Republican Sen. Lindsey Graham, who is poised next month to become chairman of the Senate Judiciary Committee, which evaluates judges and recommends them for or against confirmation.
“I respect (Scott) very much. There’s nobody I respect more than Tim,” said Graham, before dismissing Scott’s concerns that Thomas Farr, a nominee for a judgeship in the Eastern District of North Carolina, might have been behind a voter suppression strategy in 1990 that involved sending purposefully misleading information to African-Americans.
“I don’t think he had a fraught record on race. I think the mail-out was disgusting in 1990, and (Farr) had nothing to do with it,” Graham insisted.
The conservative base that fuels much of the GOP’s political energy is equally dismissive. The day after Scott announced he would provide the decisive vote to kill the Farr nomination, the grassroots advocacy group FreedomWorks blasted out an email with the phone number for Scott’s office.
“Don’t let this strong conservative nominee crash and burn!” read the call to action from FreedomWorks president Adam Brandon. “Urge (Scott) to stand with President Trump and CONFIRM Thomas Farr.”
Meanwhile, Republican leaders have opted to pretend the debate never occurred, keeping Farr’s candidacy in limbo rather than formally withdrawing his nomination.
Fellow black Republicans, though, are concerned.
About 25 influential African-American Republicans discussed Scott’s predicament this past weekend during an annual Black Republican Retreat at Virginia’s Gloucester Institute, an organization with ties to the Heritage Foundation’s president, Kay Coles James, who is black.
“We did talk about the fact that the burden should not always fall on Sen. Scott,” said Christopher Metzler, a conservative commentator and co-chairman of the event. “What should happen is, if senators believe there’s an issue, they should not be looking at the only black senator to always resolve issues of race.”
“Maybe they don’t think that’s a factor in their consideration for qualifications to sit on the federal bench for life, your views on race,” Michael Steele, a former Republican National Committee chairman who was unable to attend the weekend retreat, said of Scott’s fellow Senate Republicans. “I find that hard to believe, but apparently that’s the thinking of at least the majority that put forth this nomination.”
But in the Senate, Scott is an island among Republicans. Democrats were his biggest supporters when he stymied Farr, calling out his “courage.”
The same was true in July when Scott scuttled Ryan Bounds, a judicial nominee in the Ninth Circuit Court of Appeals who could not explain a series of racially insensitive writing from his college days.
It is in this environment that Republicans who might ordinarily side with Scott prefer to wait until he speaks first, creating a more hospitable environment for them to also risk facing the wrath of disgruntled party leaders and a hostile activist base.
“After the fact, you have people murmuring, ‘Oh, they had concerns too.’ That’s a bunch of malarkey,” said Brian Fallon, who was a spokesman for Senate Minority Leader Chuck Schumer of New York and the Obama Justice Department and now runs Demand Justice, an advocacy group that fights against President Donald Trump’s judges.
“Most of them were happy to vote for (Farr and Bounds). It takes somebody to stand up and say ‘no,’ and (Scott’s) done it twice now.”
Though Sen. Marco Rubio, R-Florida, quickly joined Scott in opposition to Bounds earlier this year, he remained noncommittal on Farr. Sen. Susan Collins, R-Maine, also continued to insist she was “asking questions” rather than offer a definitive position.
Yet during the vote to limit debate on Farr’s nomination, the chamber’s two other black senators, Democrats Cory Booker of New Jersey and Kamala Harris of California, cornered Scott, not Rubio or Collins, recognizing Scott’s vote was the one that really mattered.
Scott’s frustration, however, is less about being singled out, more about having to endure the optics of the GOP making choices that could alienate minority voters, which the party needs to do a better of job of attracting.
“I think at the end of the day, the bottom line is, there are some landmines you don’t need to step on,” he told reporters last week. “There is a way to avoid the unnecessary. I think forced errors are one thing, unforced errors are another, and we’ve got a lot of work to do to maintain a healthy opportunity to win back the suburbs. One of the ways you do that is unforced errors.”
There are significant Senate structural challenges and traditions standing in Scott’s way.
There is a history of lawmakers not questioning the prerogative of home state senators to recommend their longtime friends and associates for judicial appointments.
In Farr’s case, Sen. Thom Tillis, R-North Carolina, was personally vouching for the nominee’s record, promising his colleagues that Democratic efforts to link Farr to a decades-old voter suppression scheme was tantamount to the minority party’s efforts to tie now-Supreme Court Justice Brett Kavanaugh to allegations of sexual assault.
With Senate Republican leaders eager to confirm President Donald Trump’s judicial nominees at a record pace, there’s also a lack of appetite for vetting, leaving Scott to do, in Fallon’s words, “one-person quality control.”
Metzler ultimately suggested white senators aren’t thinking about the consequences of their partisan ambitions.
“For white lawmakers, what’s occurring here is that they are looking at their own bases, the promises that they have made to ensure that there are conservative judges,” he explained.
“Conservative and racist are not the same thing, never have been, and should never be. So rather than taking positions that are objective, based on judicial record, what many (lawmakers) are doing is simply saying, ‘I think my base would want this nominee to go forward,’’’ Metzler continued. “It’s really not the way to unite a country that is so divided along ideological and racial lines.”