In mid-June Republican leaders said they were ready to institute what has become known as the "Thurmond rule," named for the late Sen. Strom Thurmond, R-S.C., who came up with the idea.
But on Monday, Democrats attempted to test the Republican's resolve, calling for a procedural vote on the nomination of Robert E. Bacharach, an Oklahoma native appointed to an opening on the 10th Circuit Court of Appeals, which hears cases for six states including Utah.
Democrats would need 60 votes to stop a Republican filibuster. They got only 56.
Sen. Orrin Hatch, R-Utah, along with Oklahoma Republican Sens. Tom Coburn and Jim Inhofe, voted "present," indicating that they were in the chamber but did not want to vote for or against the motion.
Hatch generally opposes using a filibuster against judges, though he at times votes "present" when he doesn't want to support a particular nomination. That vote Monday had the same impact as voting no, since it did not help Democrats reach the 60-vote threshold.
The Senate won't take any more appellate level votes until after the presidential election or maybe even next year, according to Senate Majority Leader Harry Reid. "This will be our last Circuit Court judge. It is too bad, but that's the case," Reid said.
Bacharach is one of four Circuit Court nominees who have received the support of the Senate Judiciary Committee and now await a confirmation vote. The committee is still considering three other Obama nominees. There are 13 open spots on circuit courts, which is the level below the Supreme Court.
"The American people deserve better than this unprecedented partisan obstruction of the president's efforts to ensure a fair and functioning judiciary," said White House Counsel Kathy Ruemmler.
And law professor Carl Tobias from the University of Richmond criticized Monday's vote as "more of the downward spiral in the confirmation wars and that is a bad thing for the courts and certainly the 10th Circuit."
Clearly, Lee sees the situation differently.
He said it's essential to maintain the separation of powers and for the Senate to institute the Thurmond rule preventing "a particular president from packing the courts at the end of his term."
And he sees the Thurmond rule as a rebuke of the president for his use of his recess appointment power in late 2011 to name a director of the new Consumer Financial Protection Bureau at a time when the Senate considered itself in session.
Lee vowed to oppose all of Obama's nominees since and recruited Sen. Jim DeMint, R-S.C., a fellow tea party leader, to join his protest, though it gained little traction.
Lee, a member of the Judiciary Committee, still plans protest votes against Obama's circuit court nominees, but will start voting on district court nominees based on their merits.
Brooke Adams contributed to this report.