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Bench Memos

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Loopy Assertions About “Thurmond Rule”?



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At the end of his “In the Loop” political-gossip column today, the Washington Post’s Al Kamen discusses the so-called “Thurmond rule,” which he defines as “posit[ing] that, sometime in the summer in a presidential election year, no judges will be confirmed without the consent of the Republican and Democratic leaders and the Judiciary Committee chairman and ranking minority member.” Kamen continues:

Democrats have refused to recognize the rule and are known to flout it, blissfully confirming Republican presidents’ nominees well into the fall — thus cutting the number of vacancies that an incoming Democratic president might be able to fill.

The Republicans not only adhere to the rule but have been most adept at a fine four-corner stall until the rule might plausibly be invoked. [Emphasis in original.]

I’m puzzled by Kamen’s assertions in these two paragraphs. Kamen contends that “Democrats have refused to recognize the rule,” but he links to a recent column of his in which he quotes Senate Judiciary Committee chairman Patrick Leahy invoking it in 2008. And (to limit myself to one more example) this Politico article from March 2008 likewise has Democratic senator Dianne Feinstein “invoking what’s known as ‘The Thurmond Rule,’” as she “suggested that any Bush nominees who haven’t made it through the Senate by June aren’t going to make it through at all.” To be sure, that Politico article does state:

Time was, the Democrats weren’t particularly keen on the rule. In July 2000, with Clinton on his way out the door and Republicans in control of the Senate, Sen. Patrick Leahy said the Senate could not “afford to follow the ‘Thurmond Rule.’”

But it’s hardly surprising that senators on both sides of the aisle take a more friendly or more hostile approach to the ill-defined Thurmond rule depending on the party of the president making the nominations.

A quick look at the most recent statistics would also seem to refute Kamen’s one-sided account. According to the Biographical Directory of Federal Judges database, the Senate confirmed seventeen Clinton nominees after July 4, 1996 (and before year-end); nine Clinton nominees after July 4, 2000; seven Bush nominees after July 4, 2004; and fourteen Bush nominees after July 4, 2008 (at least several of whom had strong Democratic ties and were evident instances of outright White House capitulation to Democratic senators).

In sum, I can’t discern any factual basis for Kamen’s assertions.



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