Thomas Farr made a name for himself almost two decades ago providing legal counsel to Jesse Helms, a U.S. senator and North Carolina Republican who was well-known for blocking federal judicial nominees from his home state.
Now Farr, a Raleigh-based attorney who has represented North Carolina Republican lawmakers in cases involving racial gerrymanders and a voter ID law, is the judicial nominee awaiting his fate.
President Donald Trump nominated Farr in July to fill the country’s longest running U.S. District Court vacancy – a seat in the Eastern District of North Carolina, a 44-county region that spans from Raleigh to the coast. The judicial post has gone unfilled for 11 years.
Farr’s nomination and swift approval by the U.S. Senate Judiciary Committee brought rapid rebuke from the Congressional Black Caucus, civil rights organizations and voting rights advocates upset with his staunch defense of laws and election maps found by the courts to be unconstitutional. Labor unions protested his work as an employment lawyer representing corporations.
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Senate Democrats refused to give Farr’s nomination the unanimous consent needed to keep it alive into the new year, so he must be renominated by Trump and face another vote in the Judiciary Committee.
Republicans control the Senate, and so far, no cracks have appeared in GOP support for Farr. His home-state senators have strongly backed him, citing his experience in court and his top rating by the American Bar Association.
Nonetheless, some of Farr’s critics are looking to a Republican senator for help – Sen. John Neely Kennedy, a Louisiana lawyer who helped sink the nominations of three of Trump’s picks in a week.
This week, the Leadership Conference on Civil and Human Rights called for Trump to withdraw Farr’s nomination based on questions about his work in the 1990s with the re-election campaign of Helms, the former senator from Raleigh who died in 2008. Vanita Gupta, former head of the U.S. Justice Department’s civil rights division under former President Barack Obama, leads the organization.
Sen. Cory Booker, a New Jersey Democrat, also has questions and he sent letters earlier this month to Farr and Jeff Sessions, the U.S. attorney general, seeking answers.
In the aftermath of Helms’ 1990 re-election campaign, Farr was part of the defense against U.S. Justice Department complaints of voter intimidation after postcards were sent to more than 100,000 mostly black voters telling them they were ineligible to vote and might be arrested if they tried.
Old case, new questions
In response to a questionnaire from Sen. Dianne Feinstein, a ranking member of the Senate Judiciary Committee, Farr wrote that he did not know about the postcard campaign until after the mailing.
But Gerald Hebert, a former federal prosecutor who took notes about the case in the 1990s, told Indy Week recently that his recollection is different. Hebert said his notes show that Farr was part of a meeting that key players in the Helms campaign had about their “ballot security program” in October 1990. Sending postcards to voters was one of the issues talked about during that meeting.
Farr has not returned phone calls seeking comment. In a response dated Dec. 19 to Booker’s questions, published by National Review, Farr acknowledged that he attended a meeting where postcards were discussed. He said he told participants there was no reason to send postcards and added: “There was no discussion about the content of any hypothetical card that might be mailed or the persons who might be mailed a hypothetical card.”
“When I first saw the language on the card after it had been mailed and was advised as to whom it had been mailed, I was appalled,” Farr wrote.
Carter Wrenn, a Republican strategist who worked on the Helms campaign, said in a recent telephone interview that he doubted Farr knew what was written on the cards that went to black voters.
The mailings told voters erroneously that they had to have lived in their precincts for at least 30 days to vote and could face jail time if they provided inaccurate information at the polls. “None of that, of course, was true,” Wrenn said. North Carolina voters could cast provisional ballots if they showed up at the wrong precinct.
The postcards were sent out shortly after a poll in The Charlotte Observer showed Helms and Harvey Gantt, Charlotte’s first black mayor, in a near dead heat. The race had been considered close but Helms won a third term to the Senate by a comfortable margin, receiving 1,088,331 votes to Gantt’s 981,573.
Wrenn blames himself for the postcard fiasco, saying he was in the throes of a busy campaign and was being pressured by staffers to review the postcards so they could be mailed before the election. He was responsible for approving all TV and radio ads, as well as mailings. Wrenn said he gave a quick review and gave the OK without considering the consequences.
“If I had, I think I would have asked Tom to review them, and he probably would have told me, ‘No, you can't send those,’” Wrenn added.
Wrenn said in the interview and in a recent letter to Sen. Thom Tillis, a North Carolina Republican, that Farr could not have known about the content of the postcard at the time of the meeting that Hebert recalled “because it didn't exist then.”
Wrenn said the postcard idea originated with a consultant hired by the campaign and the state Republican Party. One purpose of the “ballot security” program, Wrenn said, was to track the postcards that could not be delivered to identify voters who no longer lived at their addresses. Then, if the election results were close, the campaign planned to file protests against voters they would contend had cast ballots improperly.
Wrenn said he never talked to Farr about the content of the mailer or the people it was sent to until after the U.S. Justice Department sent a letter launching the federal investigation.
Cory Booker wants answers
Daniel Keylin, a spokesman for Tillis – who has advocated for Farr’s nomination – described the recollections of Hebert as “misleading and unprovable claims” from a “left-wing political advocate.”
“The bottom-line is that North Carolina legal professionals from across the political spectrum agree that Tom Farr is a man of great character and professionalism," Keylin said in a statement. “The attempt by the far-left to smear his well-earned reputation through innuendo without a shred of actual evidence is shameful, and it’s disappointing that some of Senator Tillis’ Democratic colleagues are jumping on the bandwagon to pander to their base and advance their own political ambitions.”
Efforts to reach Hebert, director of the voting rights and redistricting program at the Campaign Legal Center, have not been successful. Hebert has been a critic of Sessions’ civil rights record and comments that Sessions made while a U.S. attorney in Alabama.
Hebert told the Huffington Post on Wednesday that Farr’s response to Booker acknowledging that he attended the meeting contradicts his previous statement that he didn’t know about the cards. “That team was discussing ways to suppress the vote,” Hebert said. “That team later sent out the cards, but I never said Farr knew they were doing it. He may have, but he denies it.”
“Recent reports indicate that you offered contradictory and inaccurate accounts regarding your role in mailing the postcards to mainly African-American voters in an effort to intimidate and threaten them from voting,” Booker wrote to Farr in the Dec. 13 letter, referring to Hebert’s comments to Indy Week and a story that ran in The News & Observer in 2009 written by the same reporter. “It is startling that you are now claiming under oath no involvement in the mailing of the postcards when in 2009 you stated that you advised the campaign not to send them.”
The Helms campaign settled the U.S. Justice Department complaint accusing the campaign and the consultant of voter intimidation. Booker has asked the Justice Department to provide him and the Judiciary Committee with a memo from June 19, 1991, that was sent to John R. Dunne, who was a U.S assistant attorney general then.
“It is of the utmost importance Senators be able to further probe Mr. Farr’s record to clear up this obvious inconsistency contained in his own accounts, and reportedly his own accounts and that of the DOJ lawyer,” Booker said in his Dec. 13 letter to Sessions.
Booker acknowledged that the Justice Department memo might include legal analysis that cannot be shared, but he suggested that senators should be able to see the factual portion. The senator asked for the information by Dec. 15, but had not received a response by Dec. 20.
Lack of diversity
Trump’s impact on the federal courts goes far beyond his nomination of Farr.
Donald McGahn, a lawyer who led the Trump transition team before becoming White House counsel, mapped out a plan to reshape the judiciary weeks before the inauguration, The New York Times has reported. In a law firm near the Capitol, McGahn put the strategy on a white board. The focus would be to fill appeals court seats with young, conservative lawyers, starting in courts with multiple openings.
With no mandatory retirement age from the federal bench, the appointments are for a lifetime.
In addition to appointing Neil Gorsuch to the U.S. Supreme Court seat that remained open for much of 2016 after the February death of Antonin Scalia, the Senate already has confirmed 12 appeals court judges, a modern record for a president in his first year. Many of the posts were seats that Republicans held open during Obama’s last two years in office.
There also is an imbalance of racial and gender diversity in Trump’s picks. Most of them are white men. Eight percent of his nominees are not white, and 19 percent are women.
The Eastern District of North Carolina job has been vacant for more than a decade because of political conflicts at the state level.
More than 25 percent of the district’s population is African-American and efforts by Obama to put a black judge on the bench were blocked by Sen. Richard Burr, a North Carolina Republican who refused to get the approval process started because of a feud with the president. Burr has said he made a deal with Obama about judicial appointments and the former president reneged on it.
Farr has been nominated for the seat before, by former President George W. Bush – in 2006, shortly after U.S. District Judge Malcolm Jones Howard semi-retired, and again in 2007. But Farr never received Senate confirmation or a vote on his nomination.
Farr’s advocates note that the American Bar Association has given him a top rating each time. “Thomas Farr is well regarded across the political spectrum and has received a well-qualified rating from the ABA, the gold standard for many members in the Senate Judiciary Committee,” Tillis said, according to a joint news release he and Burr issued in October.
But now some Republicans are putting the organization’s rating process under scrutiny. The group is “a liberal advocacy organization,” Sen. Ben Sasse said, according to Politico, “masquerading as a neutral, objective evaluator of these judicial candidates.”
Four of Trump’s nominees have been rated by the ABA as unqualified for the job. Before that, the last time a nominee received a “not qualified” rating was in 2006, according to the ABA Journal. Some other administrations have asked the ABA to privately vet potential candidates before nominating them.
The Senate went on to confirm one nominee earlier this month who had been rated as unqualified, Leonard Grasz. Burr and Tillis joined other Republicans in voting to confirm Grasz.
Kennedy, the senator whose questioning of Trump’s nominee Matthew S. Petersen went viral on social media, has exposed problems with fast-tracking some of the nominees and a lack of vetting.
‘My Cousin Vinny’
Before Petersen withdrew his name this week, Trump also pulled back the names of two other judicial nominees opposed by Kennedy.
Brett Talley, who has never tried a case and reportedly wrote a 2011 blog comment defending the Ku Klux Klan, no longer is a candidate. Nor is Jeff Mateer, who called the 2015 Supreme Court ruling legalizing gay marriage “disgusting” and has called transgender children proof that “Satan’s plan is working.”
Kennedy, who had warned the White House about judicial nominees he said were unqualified, said he planned to continue to question nominees diligently. Kennedy said the president called him after his questioning of Petersen exposed the Trump nominee as unable to answer basic law school questions and told him to “keep up the good work.”
“Just because you’ve seen ‘My Cousin Vinny’ doesn’t qualify you to be a federal judge,” Kennedy told the New Orleans TV station WWL.
Kennedy said in an interview this week that he was unaware of the questions about Farr. “I haven’t heard about that,” Kennedy said. “I don’t want to comment on that.”
Irving Joyner, a Durham-based lawyer who has represented the NAACP in redistricting and voting rights cases opposite Farr, said he hoped Kennedy would look into the matter.
“I would imagine our people in D.C. are looking into that,” Joyner said.
Gupta, the former Justice Department attorney whose organization opposes the Farr nomination, said in a statement Wednesday: “Every member of the Senate Judiciary Committee, on both sides of the aisle, has an obligation to scrutinize each person nominated to the federal courts.”
“Specific to Mr. Farr, he has devoted much of his 38-year legal career to restricting voting rights, defending employment discrimination, and advancing an extreme ideology,” Gupta added. “This record, together with his personal statements and testimony, demonstrate that he is not committed to upholding existing civil rights law, and that should disqualify him from serving as a federal judge.”
Thomas Farr’s nomination as a U.S. District Court judge was not among those carried over by the Senate into the new year.
Anyone not on the list of nominations carried over must be renominated by President Donald Trump, Minority Leader Chuck Schumer’s office said. Farr, if renominated, would face another vote in the Senate Judiciary Committee.
The Senate requires unanimous consent to carry over nominees, and Democrats have been fiercely opposed to Farr’s nomination throughout the process.
More than 50 judicial nominees were not sent back to the White House and will not have to be renominated. But some of Trump’s most controversial picks, including Charles Goodwin and Holly Teeter who were ranked as unqualified by the American Bar Association, met the same fate as Farr’s nomination.
The office of North Carolina Republican Sen. Thom Tillis issued a statement after Farr’s nomination was not carried forward to next year. “With a single senator having the ability to block a nominee from advancing, Senate Democrats chose to send back roughly 100 nominees, an unprecedented attempt of obstruction,” the statement said, noting that Presidents Barack Obama and George W. Bush had a combined total of 10 nominees not carried over in their first year.
“This is clearly nothing more than a partisan attempt by Democrats to slow down the Senate and leave seats vacant in our judicial court system. It is unsurprising that the Democrats continue to obstruct as they have all year, but they are simply delaying the inevitable and Senator Tillis looks forward to re-considering these nominees in 2018.”