McConnell’s push to confirm judges may mean another tradition is dead

The Thurmond Rule that previously cut off confirmations likely a relic

Senate Majority Leader Mitch McConnell, R-Ky., center, listens to President Donald Trump speak to the press after attending a Senate Republican Policy Luncheon on May 19, 2020. McConnell has made no indication that he will slow Trump's judicial nominees in a presidential election year, as he has done in year's past.  (Caroline Brehman/CQ Roll Call)
Senate Majority Leader Mitch McConnell, R-Ky., center, listens to President Donald Trump speak to the press after attending a Senate Republican Policy Luncheon on May 19, 2020. McConnell has made no indication that he will slow Trump's judicial nominees in a presidential election year, as he has done in year's past. (Caroline Brehman/CQ Roll Call)
Posted June 11, 2020 at 6:30am

A ghost from the old Senate that haunts the chamber’s judicial confirmation fights seems to be disappearing from the floor this year — and might be fading away for good.

At about this time during presidential election years, senators have invoked the so-called Thurmond Rule, an unwritten agreement that calls for the chamber to stop approving circuit court nominations in the few months before Election Day.

[Judge Justin Walker is a window into McConnell’s sway on federal courts]

Named after the late South Carolina Republican Sen. Strom Thurmond, senators from both sides have used it to block action on a president’s appeals court picks. Senate Majority Leader Mitch McConnell, for instance, cited the rule on June 13, 2012, as reason to halt judicial nominations at the end of President Barack Obama’s first term. McConnell was minority leader at the time.

But there’s nary a whisper of the Thurmond Rule this year. And thanks to Senate rule changes and McConnell’s focus on filling the courts with President Donald Trump’s nominees, the old rule looks like it will be ignored.

On Wednesday, McConnell teed up the nomination of his protégé Justin Walker for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. The Senate will likely take up the controversial nomination early next week.

The demise of the 60-vote filibuster for nominees means Democrats — who might be tempted to cite the Thurmond Rule in June — cannot stop a majority leader who has pledged to “leave no vacancy behind.”

And if a precedent like that is set by McConnell in an election year, it’s likely the Thurmond Rule is gone for good.

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“I don’t see the Democrats or the Republicans next year saying, ‘Well, let’s let bygones be bygones,’” said Russell Wheeler, president of the Governance Institute and a visiting fellow at the Brookings Institution. “That’s just all out the window.”

Wheeler, who has written about the Thurmond Rule, said nominations and confirmations are known to drop off in presidential election years. But that drop is not inevitable and has as much to do with the number of seats on the bench that are available. 

The number of vacancies when Trump became president was maximized by McConnell, who as majority leader in 2015 and 2016 was able to slow the number of confirmations to a trickle toward the end of Obama’s presidency. 

During Trump’s tenure, the Senate has filled nearly all vacancies in the country’s appeals courts, and some Republicans are now calling for older judges to step aside.

“If you’re a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that, if you want to make sure the judiciary is right of center,” Senate Judiciary Chairman Lindsey Graham said in a recent interview with conservative radio host Hugh Hewitt

A tradition, not a rule

In 2008, in the waning months of Republican George W. Bush’s presidency, Minority Leader McConnell slammed the majority Democrats’ “obsession” with the Thurmond Rule, saying, “This rule that doesn’t exist is just an excuse for our colleagues to run out the clock on qualified nominees.”

He went on to warn that what was occurring then “or, more accurately, what is not going on, is yet another step backward in politicizing the confirmation process.”

In 2012, it was a different story with McConnell orchestrating a blockade against Obama’s circuit court picks.

Texas GOP Sen. John Cornyn agreed with McConnell’s decision to shut down confirmations in 2012. 

“I think this is about the time. This is traditionally when the curtain comes down on circuit court judges,” Cornyn said in June of that year, explaining that Obama shouldn’t be overly concerned because “if he’s elected [again], it means only a few months delay anyway.”

Asked last week about the so-called rule, which he called the “Leahy Rule” after former Senate Judiciary Chairman Patrick J. Leahy, Cornyn said, “I think it’s been more of a tradition than a rule.” He said he didn’t know whether Graham would cease advancing nominees. 

The Senate Judiciary Committee is slated to hold a hearing to consider five judicial nominees on June 17. 

In 2013, Senate Majority Leader Harry Reid, a Nevada Democrat, deployed the “nuclear option” and lowered the votes required to break off filibusters of executive branch nominees and appeals court judges under the Supreme Court to a simple majority.

During Trump’s tenure, McConnell deployed the “nuclear option” to apply that new standard to Supreme Court nominees. He also changed procedure to reduce the time required to confirm district court nominees and lower-level executive branch nominees.

“The Leader has made it clear no vacancy will be left behind. The party who nuked the judicial filibuster doesn’t get to talk about the Thurmond Rule. They should have thought about that before they set off the bomb,” McConnell spokesman David Popp said in a statement Tuesday.

In a February interview, McConnell said his “motto for the year is ‘leave no vacancy behind.’ That includes district courts as well. And so we’re a long way from being finished with doing court confirmations this year.”

Leahy said that whether it’s a tradition or not, the Republican majority in Judiciary doesn’t “seem to like to follow any rules.”

“What they’re doing is making the rules to fit Donald Trump and Mitch McConnell, they could care less about the Senate,” the Vermont Democrat said.

Unfilled vacancies

In 2007 and 2008, the Senate, controlled by Democrats, confirmed 68 of George W. Bush’s judicial nominees, including 10 to appeals courts. The last 10 district judges were confirmed Sept. 26, 2008.

In the final two years of Obama’s term, the Republican-dominated Senate confirmed 20 nominees, including two to appeals courts.

The last confirmation vote McConnell allowed under Obama was on July 6, 2016 — about two months earlier than the final vote Democrats allowed under Bush.

In May 2016, Senate Minority Whip Richard J. Durbin spoke on the floor, urging the GOP to put up 20 judicial nominees reported out of committee but who were languishing under the calendar. The Illinois Democrat accused Republicans of running out the clock on those just as McConnell did with Supreme Court nominee Merrick Garland. 

“What are they waiting for? Why don’t they want to approve these noncontroversial judges?” Durbin said. “They are waiting in prayerful reflection for the election of Donald Trump as president.”

Wheeler of the Governance Institute said Trump’s been able to be so successful getting judges on the bench because of all those vacancies McConnell left unfilled in the waning days of the Obama administration. 

“What does Trump have? He has a lot of vacancies that McConnell gave him, and he has a compliant Senate that is willing to confirm them,” he said. 

Trump has inflated the number of confirmed judges in tweets. He also told The New York Times he expects to have nearly 300 confirmed before the end of the year. 

So far, 203 judges have been confirmed during Trump’s tenure, and McConnell shows no sign of letting up. Wheeler said he could even continue with confirmations until the beginning of the next Congress, regardless of November’s election outcome.

“I think if Trump loses the election,” Wheeler said, “he’s going to confirm judges until the Senate adjourns in early January.”

Todd Ruger and Jennifer Shutt contributed to this report.