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Breaking Ranks on the Thurmond Rule

Scott J. Ferrell/CQ Roll Call File Photo

The Thurmond Rule, the unwritten Senate tradition of the minority party blocking circuit court nominees within six months of a presidential election, will be tested today with a procedural vote on Robert E. Bacharach of Oklahoma to fill a spot on the 10th U.S. Circuit Court of Appeals.

Bacharach has the support of his home-state Senators, Republicans James Inhofe and Tom Coburn, and both of Maine’s GOP Senators said they would buck leadership and vote to cut off debate on his nomination.

“I will vote to proceed to the nomination of Robert Bacharach for the 10th Circuit because he is a highly experienced and well-qualified nominee who deserves confirmation,” Sen. Susan Collins (R-Maine) told Roll Call on Friday.

“I will vote to invoke cloture on the nomination of Richard Bacharach of Oklahoma to be a federal judge on the 10th Circuit Court of Appeals because he is highly qualified, having earned the American Bar Association’s highest rating of Unanimously Well Qualified; was approved by voice vote in the Judiciary Committee; and his nomination has bipartisan support, including previous support of his home state Senators,” Sen. Olympia Snowe (R-Maine) said Friday.

Their comments come after Minority Leader Mitch McConnell’s (R-Ky.) call last month for a blockade on circuit court judges beginning in July. Monday’s vote will be the first test of his edict.

This isn’t the first time Collins and Snowe have defied the blockade. Last month, they told a Maine newspaper, the Falmouth Forecaster, that they would not abide by the edict when it came to President Barack Obama’s pick of William Kayatta Jr. of Maine for the 1st Circuit.

Named after the late Sen. Strom Thurmond (R-S.C.) — and referred to as 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.

“Each side reinterprets [the Thurmond Rule] every election year,” said Carl Tobias, a constitutional law scholar at the University of Richmond. “The party out of power thinks it’s going to win, and each [judicial] seat you fill is one your opponent can’t. That is the dynamic going on.”

Republicans say they are following  the precedent set by Democrats, who cut off circuit court nominees in June 2004 and 2008 but continued confirming district court nominees into the fall.

“The issue is how the Leahy-Thurmond rule was perfected under Democratic leadership of the Senate during the last two presidential election years,” a Senate GOP aide  said. “In 2004 and 2008, no circuit nominees — consensus nominees, or not — were confirmed after June.”

The move did not sit well with some GOP Senators with judges in the pipeline.

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