The Thurmond Rule is an informal and somewhat amorphous rule in the United States Senate regarding confirmations of judicial nominees. While it originated with former Senator Strom Thurmond's opposition to President Lyndon Johnson's nomination of Justice Abe Fortas to be Chief Justice of the Supreme Court in June 1968, the specifics of the rule vary between sources. The rule has been described as being that "no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency" or "judicial nominations do not advance in the Senate in the latter part of a presidential election year without the support of Senate leaders and top lawmakers on the Judiciary committee."
This unwritten rule is not universally accepted. It has often been dismissed by Senators of both parties, usually whenever politically inconvenient. For example, Democratic Senator Patrick Leahy rejected the rule in the closing months of the Democratic Clinton administration, but later invoked the rule in the last months of the Republican Bush administration. In 2004, Senator Orrin Hatch dismissed the rule: "Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me." Some Senators profess ignorance of the rule; asked about its meaning, Senator Trent Lott wondered if it had to do with how long a Senator should remain in the chamber, given Thurmond's recordsetting tenure.
The rule is inconsistently applied when it is applied at all. For instance, in December 1980, Judge Stephen Breyer (now a U.S. Supreme Court Justice) was confirmed to the First Circuit Court of Appeals. And in 1984, when Thurmond was chairing the Senate Judiciary Committee, judicial confirmations occurred that fall. Moreover, despite Leahy's letter mentioned above, when Leahy was chairing the Senate Judiciary Committee, a batch of 10 district court nominees were confirmed on September 26, 2008 after having had hearings several weeks earlier.
Abe Fortas controversy
In June 1968, President Lyndon B. Johnson, with only "six months or so" remaining in his term, and having announced that he would not seek re-election, nominated Abe Fortas to serve as Chief Justice of the United States, to replace Earl Warren as Chief Justice, who had announced his retirement from the Supreme Court of the United States. The nomination drew opposition from the Republican members of the United States Senate.
The Thurmond Rule was a factor in the opposition, but Fortas also received intense scrutiny about having consulted with President Johnson while sitting as an Associate Justice of the Supreme Court and for having accepted $15,000 for nine speaking engagements at American University Law School, which raised serious questions regarding Fortas's judicial independence. Republican Senators launched a filibuster in opposition to the nomination. Through a face-saving measure arranged by President Johnson, a majority of Senators voted to end debate, but under the rules of Senate, that was insufficient to invoke cloture. At Fortas's request, Johnson then withdrew the nomination and was not able to appoint a successor prior to the end of his term.
- Kady, Ryan; Grim, Martin. “Nominations staredown in the Senate”, The Politico (2008-03-05).
- Perine, Keith.“Leahy Blames Republican Holds for Blocking Justice Nominees”, CQ Politics (2008-03-20).
- Senator Leahy stated in 2000 that, “We cannot afford to follow the Thurmond Rule and stop acting on these nominees now in anticipation of the presidential election in November.” Geoff Earle, “Senators spar over ‘Thurmond Rule’”, The Hill (2004-07-21). Via archive.org.
- In March 2008, Leahy wrote a letter to President George W. Bush, stating: “I urge you to work with senators from other states, as well, so that we might make progress before time runs out on your presidency and the Thurmond rule precludes additional confirmations.” See Perine, supra.
- Davidson, Lee. “Griffith to miss Demos' deadline”, Deseret Morning News (2004-07-21).