Brian Darling

Coming this summer: a national debate on the “Thurmond Rule.”

 

Named for its originator, the late Sen. Strom Thurmond (R-S.C.), this rule of political conduct stipulates that the party not occupying the White House shall block any and all judicial nominees brought before the Senate during a presidential campaign season.

 

There is a two-fold rationale for the rule: It preserves an incoming president’s right to nominate for open positions, and it keeps a lame duck president from loading up the federal courts with cronies and ideologues.

 

Note to conservatives: Filibuster them all. It makes sense to prevent a president from handing out lifetime federal court appointments while he is on the way out the door. Those individuals could dramatically impact constitutional and statutory interpretation long after their patron has left the Oval Office.

 

Remember that the Senate is neither a rubber stamp nor a speed bump for nominations. Article II, Sec.2 of the Constitution states that the President “shall have Power, by and with the Advice and Consent of the Senate” to “nominate” and “appoint” federal judges. The Senate thus has a clear responsibility, first, to advise the President, and then to consent—or not consent—regarding nominees.

 

Sen. Thurmond first implemented his rule in 1980, when he announced that, after the July Republican National Convention, he would block confirmation of all of Jimmy Carter’s nominees to the federal bench. Since then, both sides have embraced the rule, invoking it as early as April or May before a presidential election.

 

On March 7, 2008 , for example, Senate Judiciary Chairman Patrick Leahy (D-Vermont), announced that “the ‘Thurmond Rule’… is a rule that we still follow, and it will take effect very soon here.” A month later, on April 15 , Senate Majority Leader Harry Reid (D-Nev.) said, “There is a Thurmond doctrine that says: After June, we will have to take a real close look at judges in a Presidential election year. June is fast approaching. I believe that is the time set forth in the Thurmond doctrine.”

 

Stalling judicial nominations in the months prior to the potential selection of a new president has become a bipartisan tradition. But have Republicans jumped the gun and started stalling early?

 

John Barrasso (R-Wyo.), chairman of the Senate Republican Policy Committee, says “no.” Circuit Court nominations to date have proceeded on the same pace as in previous presidential election years. In 2004 the Senate had confirmed five circuit court judges by June. In 2008, it had by then confirmed four. Thus far in 20112, the Senate has confirmed five.

 

Last week Senate Minority Leader Mitch McConnell (R-Ky.) declared the Thurmond Rule to be in effect. Predictably, the left demonized the idea of filibustering judicial nominees.

 

But Senate Democrats don’t have a leg to stand on. As Barrasso notes, “Senate Democrats filibustered four circuit court nominees in July of 2004. During the debate on these nominations, Senator Leahy cited the ‘Thurmond Rule’ as part of the justification for filibustering them. Then again in 2008, Chairman Leahy refused to process altogether several outstanding circuit court nominees.”

 

The Thurmond Rule could easily be rechristened as the Leahy Rule. Either way you slice it, there is nothing wrong with the minority party obstructing lifetime appointments to the federal courts—especially when there is a good chance that the nominating president will be out of office come January.

 


Brian Darling

Brian Darling is a Senior Fellow in Government Studies at the Heritage Foundation. Follow him on Twitter @BrianHDarling