Bench Memos

WSJ on Election-Year Judicial Confirmations

The Wall Street Journal has an excellent house editorial today on the state of play of judicial confirmations, including the fictitious “Thurmond rule”.  An excerpt:

So far this year the Senate has confirmed a grand total of two circuit court judges. That’s unprecedented in its stinginess, even for a Senate controlled by the party that isn’t also in the White House. In Bill Clinton’s last Congress, a Republican Senate confirmed 15 appellate nominees, and Democrats confirmed 17 in Ronald Reagan’s last two years.

In the latest excuse for doing nothing, Senate Judiciary Chairman Pat Leahy is invoking the “Thurmond rule.” Under a precedent ostensibly created by Republican Strom Thurmond in 1980, confirmations of new judges cease after July in a presidential election year. But the Thurmond rule is a Democratic urban myth. Mr. Thurmond made the statement in question at a September 1980 hearing when his committee voted out 10 Jimmy Carter nominees a mere six weeks before the election.

That same year, a Senate staffer named Stephen Breyer was nominated and confirmed to the First Circuit after Ronald Reagan was elected, in the very final days of the Carter Administration.  

I will note that the statistics in the first paragraph in this excerpt use different benchmarks—this year versus the last two years of Clinton’s (and Reagan’s) presidency.  It would be better to compare for the same periods, and whether one uses the one-year or two-year comparison, the results—two appellate nominees confirmed so far this year versus eight in 2000, or eight appellate nominees confirmed since January 2007 versus 15 in Clinton’s last two years—confirm the editorial’s broader point.

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