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Last week, Supreme Court Justice Clarence Thomas lit into the political atmosphere in Washington, D.C.
At a speech hosted by the conservative Heritage Foundation, Thomas was asked about the politics surrounding judicial nominations. Thomas himself had a contentious confirmation process in the early 1990s, led by Senate Democrats, and for most of this year Senate Republicans have been pushing to keep the late Antonin Scalia’s seat empty.
"At some point we have got to recognize that we’re destroying our institutions," Thomas said.
A few days later, Republican Sen. Richard Burr took a different approach, in private comments that came to light in a leaked audio tape.
In the tape, Burr claims responsibility for "the longest judicial vacancy in (U.S.) history" – specifically a seat on the federal district court serving Eastern North Carolina. He said it while pledging, if re-elected, to stonewall Supreme Court nominees from a hypothetical Hillary Clinton administration.
"If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court," Burr said, earning a round of applause.
"This is not tough for me," he added later. "I had the longest judicial vacancy in the history of the United States – on the Eastern District of North Carolina. Not many people know that."
The vacancy he’s talking about is the longest current vacancy. But is it really the longest ever? And is Burr as responsible for it as he claims?
We endeavored to find out.
The vacant seat
That district he’s talking about is a high-profile one, stretching from the capital in Raleigh to the coast.
Its judges preside over political corruption trials as well as the many high-level drug trafficking cases that are made along Interstate 95. Judges are based in Raleigh, Fayetteville, Wilmington, Greenville, New Bern and Elizabeth City – but the Fayetteville seat is vacant.
The federal government considers it a "judicial emergency," having now been vacant for nearly 4,000 days.
That’s the seat Burr is talking about. But how much influence has he had on keeping it empty?
A single senator’s power
The U.S. Constitution instructs the president to nominate federal judges and instructs the Senate to confirm them.
There are three levels of federal courts – district courts, appeals courts and the Supreme Court – which currently have a combined 102 vacancies. The longest-standing one is in Eastern North Carolina’s district court, and it’s not even close.
That seat has been open nearly 11 years, since Dec. 31, 2005. The next-longest vacancy has existed since Jan. 7, 2010.
Russell Wheeler, a visiting fellow at the Brookings Institution, is an expert on federal judicial nominations and vacancies. Traditionally, he said, nominees who won the support of both their home state’s senators would be confirmed, regardless of party politics. But that began changing in the late 1990s and early 2000s and has gotten even more partisan recently, he said.
Wheeler said now, nominees might fail to be confirmed over political concerns even if they have the support of both home senators. But the Senate still follows a long-standing tradition not to confirm any nominee without both home senators’ support.
"It's a little back-scratching," he said. "Senators realize they want to keep control of patronage in their state."
How that applies to North Carolina
Burr joined the Senate in January 2005, nearly a year before the vacancy occurred.
In 2006, President Bush nominated Raleigh attorney Thomas Farr to the seat. Burr and then-Sen. Elizabeth Dole supported Farr – but Senate Democrats did nothing, so the vacancy continued into Obama’s tenure.
Obama didn’t nominate anyone until 2013. Burr said he wouldn’t support that first nominee, federal prosecutor Jennifer May-Parker, so that stopped her nomination.
Obama waited a few more years and then, this April, nominated Patricia Timmons-Goodson. Burr immediately said he would refuse to support the former N.C. Supreme Court justice, calling her choice "a brazenly political nomination."
Both Timmons-Goodson and May-Parker are Democrats and black women. The eastern district has never had a black judge, although its black population is above the state average.
In the leaked audio tape, Burr said he believes Obama broke a promise to him about a different nominee, so he told the president: "Let me make you a promise. This seat will be vacant on the day you go out of office."
The all-time record?
So Burr is partly responsible for the longest current vacancy. And among only district court seats, it does indeed hold the all-time record, according to Winston Bowman, an associate historian with the Federal Judicial Center.
But Bowman said there has been at least one vacancy, at the appeals court level, that lasted even longer. And as fate would have it, Burr was involved in that one, too.
A seat on the 4th U.S. Circuit Court of Appeals was open for just over 16 years, from 1994 to 2010. That seat is now held by James Wynn, a North Carolinian who replaced another North Carolina judge on the court, which oversees multiple East Coast states.
Wynn was originally nominated by Bill Clinton, but the Senate made no move to confirm him. The seat remained empty during Bush’s two terms, and Wynn was renominated by Obama in 2009. Then-Sen. Kay Hagan, a fellow Democrat, endorsed his nomination and so did Burr, and in 2010 Wynn was confirmed by the Senate.
It’s possible Burr’s support for Wynn was part of the deal he said he made with Obama, which now has him working to keep the eastern district seat empty, although we don’t know for sure. Burr’s team didn’t respond to our questions about the deal.
Sen. Richard Burr said he is personally responsible for "the longest judicial vacancy in the history of the United States."
The 11-year vacancy he’s talking about does hold the record for federal district court seats, but not for all federal courts – at least not yet.
In terms of his responsibility for the district court vacancy, Burr is right that he’s a large reason why it’s still empty. But he doesn’t get 100 percent of the credit or blame. Democrats blocked Bush’s nominee to the seat from 2006 until 2008. If they hadn’t, this vacancy would have been filled a decade ago. But that didn’t happen, and Burr is right that he’s responsible for keeping the seat empty.
We rate this claim Mostly True.
CNN story containing audio from Burr’s speech, Nov. 1, 2016. Audio of Burr’s comments start approximately 25
United States Courts, "jJdicial Emergencies"
United States Courts, "Current Judicial Vacancies"
Kinston Free Press, April 30, 2016, "Decade-old federal judge vacancy emerges as campaign issue"
Timeline of George W. Bush judicial nominees and confirmations
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