[Congressional Record Volume 164, Number 188 (Thursday, November 29, 2018)]
[Senate]
[Pages S7202-S7205]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Thomas Farr
Mr. MENENDEZ. Mr. President, I rise today in opposition to the
nomination of Thomas Farr to the Eastern District of North Carolina.
Those who sit on the Federal bench are bound to uphold the Constitution
for all Americans, regardless of race, gender, ethnicity, or political
leaning, but Mr. Farr cannot be trusted to defend equal justice under
the law.
Working to disenfranchise voters with a particular hostility toward
African-American voters has been his lifelong passion. Consider his
work for Jesse Helms' 1990 Senate campaign. We all know Helms' record
on race.
When the Justice Department brought a lawsuit against the Helms
campaign for sending over 100,000 postcards to mostly African-American
voters, falsely warning them that they were ineligible to vote and
could be prosecuted for casting a ballot, it was Mr. Farr who defended
the scheme. Yet, despite having served as the Helms' campaign attorney,
Farr denied having any involvement with the postcards in his Senate
questionnaire.
Mr. Farr claimed he did not ``participate in any meetings in which
the postcards were discussed before they were sent,'' but according to
the former head of the Justice Department's Civil Rights Division,
Gerald Hebert, ``the answers in [Farr's] questionnaire are contrary to
the facts.''
Mr. Hebert took contemporaneous notes while investigating the Helms
campaign--notes that place Mr. Farr at
[[Page S7203]]
a meeting on the postcard scheme just 3 weeks before they were sent.
Years later, Farr led a 3-year legal battle to defend North Carolina
law that disgracefully shortened early voting, instituted onerous
government ID requirements, and eliminated same-day voter registration
and out-of-precinct voting, all of which are known to
disproportionately suppress minority, elderly, and disabled voters.
Federal courts ruled the law unconstitutional for targeting African-
American voters ``with almost surgical precision''--purposeful,
surgical precision--calling it the most restrictive law since the era
of Jim Crow.
I know Republicans want to confirm as many judges as possible, but
why this judge when there are so many other qualified jurists to choose
from? I think it is because they know the GOP agenda of enriching big
corporations at the expense of everyday working families is incredibly
unpopular with the American people.
Consider that while the Republicans held onto the Senate this year,
they lost by 16 million votes nationwide. Democracy is supposed to be a
battle of ideas, but when it comes to healthcare or student loan debt
or climate change, they don't have any. When you can't win a fair
fight, what do you do? You tilt the playing field in your favor.
Republicans want to stack the court with judges who will do their
bidding--grossly out of step with the American people on everything
from voting rights and redistricting to healthcare and climate change,
to the constitutionality of Whitaker's appointment to lead the Justice
Department. That is what Leader McConnell meant about nominations being
Republicans' best chance of having a long-term impact on the Nation's
future. It is their best chance at denying minorities from voting and
forcing their bad ideas on the American people.
The Republicans are so intent on confirming judges with shameful
records on voter suppression that they have shredded the blue-slip
process here in the Senate, which allows the Senators to green-light or
to prevent hearings on nominees from their home States. It is a
process--Senator Hatch once called the blue-slip process the last
remaining check on the President's judicial appointment power.
Ironically, back in 2013, when President Obama nominated an African-
American assistant U.S. attorney named Jennifer May-Parker to this very
seat, the Democrats respected Senator Burr's decision not to return a
blue slip, and then-Chairman Pat Leahy chose not to hold a Judiciary
Committee hearing. Then, in 2016, President Obama nominated Patricia
Timmons-Goodson, the first African-American woman on the North Carolina
Supreme Court, to this same seat. If confirmed, either of these
trailblazing women would have become the first African American to
serve in the Eastern District of North Carolina--a district that is 27-
percent African American. Yet neither Senator Burr nor Senator Tillis
returned a blue slip for Ms. Timmons-Goodson; thus, Chairman Grassley
did not act on her nomination.
Yet, today, President Trump's nominees are being confirmed despite
objections from home State Senators. Paul Matey, a nominee from New
Jersey, will likely become another example. Neither I nor Senator
Booker were meaningfully consulted by the White House regarding New
Jersey's open seat on the Third Circuit. For several reasons, we
haven't returned blue slips for Paul Matey; yet they moved ahead with
the hearing for him. So it has been eviscerated--totally, totally.
It has gone little by little. First, if one of the two Senators
turned in a blue slip, that was enough. Now it doesn't matter that
neither Senator turns in a blue slip; they go ahead with the hearing
and probably with a vote. So the precious check and balance that
Senator Hatch talked about as the last vestige of a check and balance
on judicial nominations has largely been lost.
The Republicans claim to be the party of conservatism. Yet I see
nothing conservative in their willingness to sweep aside century-old
procedures for policy gain. They put their party before their country
and show no fidelity to the institutions that have truly made this
country great. Something is wrong with any political party that makes
the suppression of voters its chief electoral strategy. Mr. Farr is
just one more card in their deliberate effort to stack the deck against
our democracy, to disenfranchise voters and force their unpopular, bad
ideas on our country.
For the sake of our democracy, I urge my colleagues, in this case
particularly, to do the decent thing, to do the right thing--to stand
up for the voting rights of all Americans and reject this nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Is there a time limit?
The PRESIDING OFFICER. There is no time limit.
Mrs. FEINSTEIN. Thank you. I know there are others waiting, so I
don't estimate I will take more than 10 or 12 minutes.
I rise in opposition to the nomination of Tom Farr to the Eastern
District of North Carolina. I do so as the ranking member of the
Judiciary Committee.
The vote for Mr. Farr's nomination, as Members know, had been
scheduled for today, but it has been postponed. Mr. Farr's long career
indicates that his history raises serious questions about his ability
to safeguard voting rights for all Americans. In fact, he has a history
involving voter suppression efforts, which leads me to question his
qualifications to even be a Federal judge.
Farr's hostility toward voting rights can be traced back to the 1980s
and 1990s when he worked as a lead attorney for Senator Jesse Helms'
reelection campaign. Media reports indicate that he was not truthful in
his responses to questions for the record about his involvement in
voter suppression efforts that were orchestrated by the Helms campaign
and by the Republican Party of North Carolina.
Here are the facts:
In 1990, Helms was in a tight race with the mayor of Charlotte,
Harvey Gantt, and the campaign implemented a strategy to suppress and
confuse African-American voters. The Helms campaign and the North
Carolina GOP implemented a so-called ballot security program. That
program included sending more than 120,000 postcards almost exclusively
to African-American voters, saying they were required to live in a
precinct for at least 30 days prior to election day and could be
subjected to criminal prosecution.
This information was, in fact, false. In fact, one African-American
voter in the State who received a postcard that informed him that he
could not vote if he had not lived in his voting precinct for at least
30 days had lived at the same address for more than 30 years and had
been registered to vote that entire time. So clearly these postcards
were designed to intimidate African-American voters.
In committee, I asked Mr. Farr about this program and his
participation in it. He told me that he did not provide any counsel and
was not aware of the postcards until after they were sent. Former
Federal prosecutor Gerald Hebert, who had worked on voting rights
issues at the time, contradicted these statements.
To get to the bottom of it, the Democrats on the Judiciary Committee
requested a copy of a Justice Department memo that reportedly detailed
Farr's role in this voter suppression incident, but the Department
would not provide a copy of the memo. The Washington Post has now
obtained the memo, which clearly shows that Farr was, in fact, involved
in these voter intimidation efforts.
I ask unanimous consent that the appropriate parts of the Washington
Post article and a memorandum be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Nov. 27, 2018]
Fate of Divisive Judicial Nominee From North Carolina Uncertain Amid
Criticism
(By Seung Min Kim and John Wagner)
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.
[[Page S7204]]
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.
____
Action Memorandum--Recommended Lawsuit Against North Carolina
Republican Party, Helms Campaign for Senate Committee, et al. Under 42
U.S.C. 1971(b) and 42 U.S.C. 1973i(b)
(June 19, 1991)
From John P. Dunne, Assistant Attorney General, Civil Rights
Division.
Lee H. Rubin, Attorney, Voting Section, Civil Rights
Division.
[EXCERPT: PAGE 8-9]
D. The Investigation
Our investigation began on November 1, 1990, the day we
obtained reliable information that the postcards at issue had
been sent primarily to black voters throughout the State. On
that day, we requested that the FBI contact Jack Hawke,
Chairman of the North Carolina Republican Party, and ask Mr.
Hawke, among other things, the method used to select the
voters who were sent postcards and all plans regarding the
use of the returned postcards. Mr. Hawke refused to return
FBI Agent George Dyer's phone calls, and eventually referred
Dyer to his attorney, Thomas Farr, an attorney with Maupin,
Taylor, Ellis and Adams, in Raleigh, who was immediately
advised by Mr. Dyer of the information we sought from the
North Carolina Republican Party.
On Monday, November 5, 1990, after receiving no information
responsive to our request, you contacted Mr. Farr and
insisted that he provide us with the information we requested
by that afternoon. During this conversation, Farr assured you
that no information obtained from the returned cards would be
used as a basis to challenge voters on election day. Late in
the afternoon on November 5, Farr telefaxed to us a list of
precincts, which he orally represented to be the precincts in
which the voters selected to receive the postcards resided.
Although Farr also advised us that Hawke would be made
available that day for an interview with Dyer and myself,
Hawke in fact did not submit to a voluntary interview that
day.
The lack of cooperation which marked the initial stages of
the investigation has persisted during the course of our
investigation. Soon after the election, we contacted the
North Carolina Republican Party, the Jefferson Marketing
Companies, Mr. Ed Locke, and Mr. Doug Davidson, and requested
that they provide us with all information relevant to our
investigation. Mr. Hawke and Ms. Effie Pernell, the Executive
Director of the North Carolina Republican Party, voluntarily
spoke with Dyer on November 9, 1990. In late November, we
received a request from Mr. Michael Carvin, one of the
attorneys representing the North Carolina Republican Party,
for a meeting with Department attorneys to discuss our
investigation. At the time we received this request, we were
on the verge of obtaining voluntary statements from
individuals associated with Jefferson Marketing and from Doug
Davidson. However, the respective counsel chose to delay the
scheduling of any interviews until we responded to Mr.
Carvin's request. Asserting that the requested meeting would
be ``premature,'' we declined the invitation to meet with
Carvin on December 21.
[EXCERPT: PAGE 11-14]
D. The 1990 ``Ballot Security'' Program
The postcard mailing was one component of the 1990 ``ballot
security'' program financed by the NCGOP. The wheels for the
1990 ``ballot security'' program were set in motion long
before the actual mailing of the postcards. According to Doug
Davidson, of Campaign Management, Inc., ``ballot security''
was discussed at several meetings held during the summer
months of 1990. These meetings were attended by Davidson,
Carter
[[Page S7205]]
Wrenn, a consultant to the Helms Committee, Peter Moore, the
campaign manager for the Helms committee, Jack Hawke,
Chairman of the NCGOP, and Effie Pernell, Executive Director
of the NCGOP. During these meetings, in addition to
discussing general campaign strategy, Davidson recalls that a
consensus was reached that some type of ``ballot security''
effort needed to be undertaken prior to the 1990 general
election. Peter Moore confirmed Davidson's recollections, as
he recalls meetings in which discussions focused upon the
need for a ``ballot security'' program in connection with the
November, 1990 election. At one of these meetings involving
the leadership of the Helms Committee and the NCGOP, the
decision was made to budget $25,000 for the 1990 ``ballot
security'' program and to finance the ``ballot security''
program with NCGOP funds.
In early September, 1990, Ed Locke, a political consultant
from Charlotte who had played a major role in organizing the
1984 ``ballot security'' program for the NCGOP and the 1984
Helms Committee, contacted Tom Farr to offer his services for
coordinating the 1990 ``ballot security'' program.
On October 16th, Davidson and possibly Tom Farr, who had
worked with Ed Locke on the 1984 ``ballot security'' program
for the NCGOP and the Helms Committee, contacted Locke by
telephone in Charlotte and asked Locke if he would be willing
to meet in Raleigh to discuss the 1990 ``ballot security''
program. Apparently Peter Moore and Carter Wrenn had been
consulted concerning contacting Locke for discussions on the
``ballot security'' program and had given their assent to
pursue such discussions. Locke agreed to meet with the Helms
Committee representatives and flew to Raleigh the next day.
In Raleigh, he met initially with Moore, Davidson, and
Farr. This meeting was held at Farr's law firm, Maupin,
Taylor, Ellis & Adams. At the meeting, the participants
apparently reviewed the 1984 ``ballot security'' program with
an eye toward the activities that should be undertaken in
1990. Davidson stated that by the end of the meeting they had
formulated a tentative outline for the 1990 ``ballot
security'' effort. Davidson recalls that a mailing targeted
at voters who no longer resided in the precinct in which they
are registered was one of the projects suggested for 1990.
They also discussed who would be best suited to coordinate
the ``ballot security'' effort.
According to Farr, he told the attendees of the meeting
that there was only a limited number of ``ballot security''
programs that could be undertaken with only about three weeks
left in the election. Farr also stated that the need for a
``ballot security'' program was not as compelling as in 1984,
since, unlike in 1984, the state had a Republican governor.
Since the Governor has power to appoint two out of the three
members of each county's board of elections, Farr explained
that the Republican-controlled county election boards
throughout the state would serve effectively as a statewide
``ballot security'' program, as they would ensure a fair
election process for Republican candidates. He suggested that
contact be made with a Republican board of elections member
in every county to ensure that they will be working on
election day. He also suggested that, to the extent that any
``ballot security'' programs are undertaken, they should
focus on those precincts with little or no Republican
presence at the polls. To this end, he advised that the Helms
Committee/NCGOP should hire observers to watch the opening
and closing of the polls in such precincts. He suggested that
it may also be helpful to publicize the fact that a ``ballot
security'' program is going to be undertaken.
When the idea of a card mailing was raised, Farr told us
that he explained to Locke and the others that while during
the 1984 election, state law provided that returned postcards
may serve as prima facie evidence that a voter was not
properly registered to vote in that precinct, such procedures
had been altered subsequent to that election so that a
returned mailing could no longer serve to support an election
day challenge of voters. He told the others that in light of
this change, a postcard mailing like the mailing conducted in
1984 would not be particularly useful, except for use as
evidence in post-election challenges.
Mrs. FEINSTEIN. The memo includes Farr's own retelling of meetings in
which sending postcards to voters was discussed. In fact, Farr told
colleagues that postcards might not be as effective in kicking voters
off the rolls as they had been in 1984. It is impossible, though, to
square this memo with Farr's denial to the Judiciary Committee that he
had any knowledge of these actions.
In addition, since that time, Mr. Farr has remained active in efforts
to depress and dilute African-American voting. In several cases, Farr
defended North Carolina's congressional and legislative districts that
were drawn after the 2010 Census against allegations that the State
legislature drew them to dilute the vote of African Americans. Farr has
defended these districts before North Carolina's State courts, Federal
courts, and the Supreme Court. However, in each instance, his arguments
have been rejected.
In North Carolina v. Covington, a three-judge panel in the Middle
District of North Carolina found that ``race was the predominant factor
motivating the drawing of all challenged [state legislative]
districts.''
In Harris v. McCrory, two of the three Federal judges on a panel held
that the State's congressional redistricting plan violated the 14th
Amendment's equal protection clause.
In 2016, Farr also defended North Carolina's restrictive voter ID law
in the North Carolina State Conference of the NAACP v. McCrory. He had
served as an adviser to the State legislature as it was considering
that legislation. In arguing before the Fourth Circuit, Farr strongly
denied that racial animus toward African Americans was the motivation
for the voter ID law. The court, however, strongly disagreed. In
striking down the law, the court strongly rejected Farr's arguments,
noting that the law's requirements ``target African Americans with
almost surgical precision.'' That is the Fourth Circuit's confirming
that racial animus was part of this.
The Congressional Black Caucus Foundation expressed its strong
opposition to Farr's nomination, writing that ``Farr has amassed a
record that puts him at the forefront of an extended fight to
disenfranchise African-American voters.''
Opposition to Farr's nomination has been compounded by the history of
this particular vacancy, which has been open for a long time--actually,
since 2006. President Obama nominated two highly qualified African-
American women to fill the vacancy. Either would have been the first
African American to serve on the court--a long-overdue milestone in a
district in which more than 25 percent of the population is African
American.
The first nominee, Jennifer May-Parker, served as chief of the
Appellate Division at the U.S. Attorney's Office in the Eastern
District of North Carolina. By that time, she had served in the U.S.
Attorney's Office for 14 years. Her nomination did not move forward
because she didn't receive a blue slip from the State's Republican
Senator even though he had initially recommended her to the White House
as a potential nominee.
The second nominee, Patricia Timmons-Goodson, served as the vice
chair of the U.S. Commission on Civil Rights. She had previously served
as an associate justice on the North Carolina Supreme Court and as an
associate judge for the North Carolina Court of Appeals. Again,
Republicans did not allow her nomination to move forward.
While the Republicans have undermined the blue-slip policy to confirm
President Trump's judicial nominees, it is important to know that the
only reason Tom Farr's nomination is under consideration today is that
Republican blue slips were honored by the Democrats during the Obama
administration. In short, the Republicans blocked two highly qualified
African-American women from filling the vacancy in order to hold the
seat open for a White nominee with a history of disenfranchising Black
Americans. I am sorry to say that, but that is the way it was.
It is impossible to see how the people Tom Farr would serve in the
Eastern District of North Carolina would ever believe they would be
getting a fair shot in his courtroom. The Senate should reject this
nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.