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With less than four and a half months until Election Day, Senate Republicans are shutting off the bipartisan spigot when it comes to confirming President Barack Obama’s nominees to the nation’s top courts and will present a unified front against his circuit court picks through November.
Senate Minority Leader Mitch McConnell (Ky.) made the decision to blockade nominations official Wednesday when he informed his colleagues that he would invoke the “Thurmond Rule” from now until after the elections.
Named after the late Sen. Strom Thurmond (R-S.C.) — and alternately called the “Leahy Rule” by some Republicans after Judiciary Chairman Patrick Leahy (D-Vt.) — the doctrine holds that within six months of a presidential election, the opposition party can, and typically does, refuse to allow votes on circuit court judges.
Republican sources said the GOP will impose its blockade on circuit court judges now but that district court nominees will likely continue to be confirmed until at least early September, when cooperation on lower court picks has traditionally ended.
According to GOP lawmakers, McConnell, Senate Judiciary ranking member Chuck Grassley (Iowa) and other top leaders discussed imposing the Thurmond Rule during Wednesday’s weekly Steering Committee luncheon for conservatives.
Grassley said he told his colleagues that “we ought to be instituting the Leahy-Thurmond rule right now,” arguing that Republicans have shown Obama the same deference on circuit court judges as Democrats showed former President George W. Bush.
“By this time, nobody can say it’s not fair to this president based on the number of nominations we’ve put up,” Grassley said.
McConnell’s decision was welcomed by his GOP colleagues.
“We’re in that window [of time] now,” Senate Republican Conference Chairman John Thune (S.D.) said. He added, “I think it’s about time, and it’s something we ought to do.”
National Republican Senatorial Committee Chairman John Cornyn (Texas) agreed, saying, “I think this is about the time. This is traditionally when the curtain comes down on circuit court judges.” Cornyn, who is also a member of the Judiciary Committee, noted that Obama shouldn’t be overly concerned because “if he’s elected [again], it means only a few months delay anyway.”
Sen. Orrin Hatch (R-Utah), a longtime member of the Judiciary Committee, said the invocation of the Thurmond Rule was only a matter of time. Hatch noted that “it’s always been used,” since Thurmond first blocked the nomination of Justice Abe Fortas to Chief Justice of the United States in 1968.
Individual Republicans during the past year have vowed to block one or more of Obama’s judicial nominees for a variety of reasons. Sen. David Vitter (R-La.) earlier this month cited the looming presidential election for his decision to filibuster a district court judge from Baton Rouge.
Saying he has “bent over backwards to cooperate” with Obama on nominations, Vitter told the Advocate newspaper, “Now that it’s a few months before a presidential election, however, I’m going to let the people speak before supporting any others.”
But the decision by leadership to formally invoke the Thurmond Rule raises the stakes significantly because an individual Senator’s filibuster can be overcome — so long as enough Republicans are willing to vote with Democrats. With McConnell now backing use of the Thurmond Rule, that appears unlikely to happen.
Leahy acknowledged the reality of the situation: “It’s an election year, and I understand that.”
Still, he said he was concerned that Republicans were invoking it this early in the cycle. “I would just remind them that in President Bush’s first and second terms, we went late in the year confirming judges” before Democrats called an end to bipartisanship on judicial nominations, Leahy said.
Indeed, Democrats said that between June and November 2004, the Senate confirmed 25 of Bush’s nominees, while during that same period in 2008 the Senate confirmed 22 judicial nominations. Democrats also point to the fact that there are currently 75 judicial vacancies that need to be filled, which is significantly higher than in either 2004 or 2008.
Recently, judicial nominations had been one of the few bright spots in the increasingly divided, bitter chamber.
Senate Democratic Conference Vice Chairman Charles Schumer (N.Y.) as late as last week noted the bipartisanship of the judicial confirmation process.
“All around this chamber, there are green shoots of bipartisan activity. In the last two months alone, we have overhauled the postal system, approved a multiyear transportation program, renewed the Violence Against Women Act, streamlined drug approval rules at the FDA, renewed the Export-Import Bank and passed a bill to help business startups. We have confirmed 20 judges and put the Federal Reserve Board at full strength for the first time in six years,” Schumer noted in a June 7 floor speech.
But Republicans counter that they are on the same pace of confirming circuit judges as Democrats were under Bush, noting that in 2004, the Senate confirmed five circuit court nominees, and in 2008, the chamber confirmed four, with the last confirmation coming in June in both years. Thus far this year, the Senate has confirmed five of Obama’s nominees, including the confirmation of Andrew Hurwitz to the 9th Circuit Court of Appeals on Tuesday.
Hurwitz’s road to confirmation, however, may have foreshadowed the coming blockade, considering GOP backers, such as Minority Whip Jon Kyl (Ariz.), were barely able to muster the eight Republican votes needed to help Democrats overcome a filibuster. And with the Thurmond rule being invoked, Hurwitz may be the last circuit judge to see confirmation this year.
Republicans point to the bipartisan nature of the Thurmond Rule, which was invoked by Senate Majority Leader Harry Reid (D-Nev.) during the 2008 election.
“What are we going to do the rest of this year? You know, 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,” Reid said in an April 2008 floor speech.