Bench Memos

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The Fictitious “Thurmond Rule”


This Politico article on the judicial-nominations deadlock in the Senate refers to Senator Feinstein’s invocation of the so-called Thurmond Rule, “named after the late Sen. Strom Thurmond (R-S.C.), who [supposedly] decreed that no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency.”  But it is highly dubious that Senator Thurmond ever proclaimed such a rule, and he certainly never implemented it. 


The mythical rule apparently traces to distortion of comments Senator Thurmond made at a September 17, 1980, Judiciary Committee markup, at which the committee favorably reported ten nominees to the full Senate for floor action.  Senator Thurmond merely stated:  “I would remind [the Committee] it is just six weeks before the election, and I want to say that for a year and a half before the last election, there was no action taken on judges when we had a Republican President.”  The Senate confirmed 14 judges during the last six months of 1980, including Stephen Reinhardt, the highly controversial nominee to the Ninth Circuit, and Stephen Breyer, who wasn’t even nominated (to the First Circuit) until after President Carter had lost his bid for re-election and Republicans had won control of the incoming Senate.  Also, Ruth Bader Ginsburg was confirmed to a D.C. Circuit seat on June 18, 1980.  How Senator Thurmond’s words and these confirmations amount to a “decree[] that no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency” is baffling.  (Also, of course, Jimmy Carter wasn’t a “lame duck” until after he lost the presidential election.)


More importantly, the dramatic slowdown that the Democrats have long had in place on judicial nominations—for example, only six courts of appeals nominees confirmed so far in the 2007-2008 Senate session, compared to fifteen in President Clinton’s last two years—makes any further slowdown particularly inappropriate.  As one senator has aptly put it: 


Having begun so slowly in the first half of this year, we have much more to do before the Senate takes its final action on judicial nominees this year.  We cannot afford to follow the ‘Thurmond Rule’ and stop acting on these nominees now in anticipation of the presidential election in November.  We must use all the time until adjournment to remedy the vacancies that have been perpetuated on the courts to the detriment of the American people and the administration of justice.  That should be a top priority for the Senate for the rest of this year. 


As it happens, those are the wise words, from July 25, 2000, of now-chairman Patrick Leahy.

Tags: Whelan


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