Updated: 4:23 p.m.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) today said he would continue to try confirming President Barack Obama’s judicial nominees, despite a Senate GOP leadership decision to block all circuit court nominations until after the November elections.
As Roll Call reported today, Minority Leader Mitch McConnell (R-Ky.) officially informed his Conference on Wednesday that he would be abiding by the “Thurmond Rule,” which holds that within six months of a presidential election, the opposition party begins to refuse to allow votes on circuit court judges.
But Leahy said the GOP is invoking the rule too soon.
“This shutdown is consistent with what the partisan Senate Republican leadership did in 1996 and again at the end of President Clinton’s presidency, and can be contrasted with how Democrats acted in 1992, 2004 and 2008,” Leahy said in a statement.
He added that the move puts Republicans who have publicly pledged to oppose judicial filibusters in all but “extraordinary circumstances“ as well as GOP Senators who have already signed off on some nominees in a difficult spot.
“This is really a challenge to the Senators who have said that they will not support these filibusters and this kind of shutdown, and to those Republican Senators who support the circuit court nominees from Maine and Oklahoma,” Leahy said. “They should reject this obstruction, just as the Senate rejected the filibusters of Judges Paul Watford and Andrew Hurwitz. It is hard to see how this new ‘Thurmond Rule’ shutdown is anything more than another name for the stalling tactics we have seen for months and years.”
Leahy continued, “I have yet to hear any good reason why we should not continue to vote on well-qualified, consensus nominees, just as we did up until September of the last two presidential election years. I have yet to hear a good explanation as to why we cannot work to solve the problem of high vacancies for the American people. I will continue to work with the Senate leadership to try to confirm as many of President Obama’s qualified judicial nominees as possible to fill the many judicial vacancies that burden our courts and the American people across the country.”
Democrats said that from June to 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 75 judicial vacancies that need to be filled, which is significantly higher than in either 2004 or 2008.
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 of each year. 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.
Republicans said Wednesday that they are not yet planning to block district court nominees, only appellate level picks. A blockade on lower court nominees could come by September, however, they said.
The Thurmond Rule is named after the late Sen. Strom Thurmond (R-S.C.) — and alternately called the “Leahy Rule” by some Republicans.
The Senate on Tuesday confirmed Hurwitz to the 9th Circuit, after narrowly overcoming a GOP-led filibuster attempt.
Judiciary ranking member Chuck Grassley (R-Iowa) defended the GOP’s decision this afternoon, saying Democrats were being “disingenuous to suggest that Senate Republicans have not been fair in the consideration and confirmation of judicial nominees. And, it is entirely appropriate and consistent with past practice to invoke the Thurmond-Leahy rule at this point.”
Grassley emphasized that the rule the GOP has decided to invoke applies to circuit court nominees only.
“The Senate considered district court nominees into the fall during the last two presidential election years but not circuit court nominees, as was said today. In fact, during both 2004 and 2008, the last circuit court nomination considered was in June. No one has suggested that no more district court nominations will be considered this year.”
Grassley added that the Senate has confirmed 30 more circuit and district court nominees during Obama’s term so far than were confirmed in the last four years of President George W. Bush’s term.
John Stanton contributed to this report.