The fate of President Trump’s divisive judicial nominee hung in the balance Tuesday as a Republican senator remained undecided on whether to confirm Thomas Farr, who previously worked to defend North Carolina voting laws ruled to have been discriminatory against African Americans.
Senate Democrats have been particularly critical of Farr, an attorney in Raleigh who backed a law that the courts called “the most restrictive voting law North Carolina has seen since the era of Jim Crow.” All 49 Democrats oppose the nomination.
Andrew Gillum and Stacey Abrams, two black candidates who fell short in high-profile gubernatorial races this month, criticized the nomination in a new statement Tuesday, underscoring the national fight over Farr’s nomination to a seat on the U.S. District Court for the Eastern District of North Carolina.
“Thomas Farr’s record of hostility and disregard for fundamental civil rights disqualifies him for a lifetime appointment that will allow him to codify his discriminatory ideology into law,” Gillum and Abrams said in a joint statement. “North Carolina’s Eastern District — where most of the state’s African Americans live — should be represented by a Bench that represents its diversity, not one that actively works to disenfranchise them.”
Senate Republican leaders have been publicly confident that they will have the votes to confirm Farr, although they will almost certainly need to summon Vice President Pence to break a 50-50 tie.
Sen. Jeff Flake (R-Ariz.) has vowed to oppose all judicial nominations until the chamber votes on legislation that he is seeking that would protect special counsel Robert S. Mueller III. Sen. Tim Scott (R-S.C.) said Tuesday that he had made no decision on the nomination.
Farr worked on the 1990 campaign of Sen. Jesse Helms (R-N.C.), which came under scrutiny for distributing postcards that the Justice Department later said were sent to intimidate black voters from heading to the polls.
The postcard issue has become one factor in the unusually bitter nomination fight. In response to questions from Democrats, Farr has denied any role in drafting the postcards and said he did not know about them until after the mailers were sent, saying he was “appalled” when he found out about them.
A 1991 Justice Department document newly obtained by The Washington Post sheds some light on Helms’s campaign and the state Republican Party’s broader “ballot security” program, of which the postcards were one component. Farr served as a lead lawyer for Helms.
The DOJ document, called a justification memo, elaborates on a meeting disclosed by Farr in a letter to Sen. Cory Booker (D-N.J.) last year. In that five-page letter, Farr said he participated in a “ballot security” meeting of the Helms campaign in October 1990 in which he said there was no need to do a card mailing because returned cards could no longer be used to challenge voter legitimacy.
The DOJ document obtained by The Post outlined the basis for the DOJ complaint against the Helms campaign and the North Carolina Republican Party for the more than 120,000 postcards sent primarily to black voters that officials said were an attempt to dissuade them from voting.
At the meeting, Farr told others that there were a limited number of ballot security initiatives that the groups could undertake at that point in the race, according to the memo. He also said because the current Republican governor could tap a majority of county election officials statewide, the need for a ballot security program that year was lessened because “they would ensure a fair election process for Republican candidates.”
During the meeting, participants also reviewed the Helms campaign’s 1984 ballot security effort Farr had coordinated “with an eye toward the activities that should be undertaken in 1990,” the DOJ wrote in the memo. The document did not say directly whether the controversial postcards were discussed as part of that effort, and Farr has repeatedly denied any prior knowledge of those mailers.
Farr was not named in the DOJ complaint against the Republican entities, and he also signed a consent decree that effectively settled the issue in early 1992.
Sen. Thom Tillis (R-N.C.), one of Farr’s most vocal supporters, had asked a former prosecutor to investigate the claims that Farr was directly involved with the controversial postcards. That investigation has turned up no evidence.
“I’d ask them one simple question: When in the history of the DOJ have they allowed somebody who was subject to the investigation negotiate the consent agreement and sign it?” Tillis said Tuesday. “Never happens, which is exactly why these are baseless claims.”
Booker had requested DOJ release the justification memo, but it declined, citing confidentiality issues. A Justice Department spokesman declined to comment Tuesday on the memo. Farr did not return an email requesting a comment; nor did the White House.
The Senate Judiciary Committee advanced Farr’s confirmation with a party-line vote in January. Republicans in control of the North Carolina General Assembly hired Farr and others in his law firm to defend congressional boundaries it approved in 2011. In 2016, a federal court struck down the map as a racial gerrymander.
Farr also helped defend a 2013 voter ID law that was considered one of the strictest in the nation. In addition to requiring residents to show identification before they could cast a ballot, the law also eliminated same-day voter registration, got rid of seven days of early voting and ended out-of-precinct voting.
A federal court ruled in 2016 that the primary purpose of North Carolina’s law wasn’t to stop voter fraud but rather to disenfranchise minority voters. The judges wrote that the law targeted African Americans “with almost surgical precision,” in part because the only acceptable forms of voter identification were ones disproportionately used by white people.
Farr has a “well qualified” rating from the American Bar Association and was previously nominated to the same post by President George W. Bush.
Senate Minority Leader Charles E. Schumer (D-N.Y.) said he spoke to Gillum and Abrams earlier in the day and that they “were hurt by attempts to limit voting rights.” During a floor speech, Schumer called Farr the “chief cook and bottle washer” for the contested laws in North Carolina.
“I don’t care what your party is, and I don’t care what your political ideology is,” Schumer said. “How can you have this man in the court?”
The history of the seat Farr would fill also has contributed to the acrimony over his nomination. President Barack Obama nominated two African American women for the post during his tenure, but neither was granted a hearing. This is the longest current court vacancy nationwide.
Sen. Marco Rubio (R-Fla.) has been considered a potential “no” voted on Farr because he was prepared earlier this year to join Scott in voting against another judicial nominee with a history of racially charged writing. That nomination was withdrawn.
On Tuesday, however, Rubio — who was briefed by his staff on the nomination Tuesday evening — was prepared to vote for Farr barring any new information that may come out about him, according to a Senate official familiar with his thinking.
Sen. Susan Collins (R-Maine), another potential swing vote, also backs Farr.
Erica Werner contributed to this report.