In the politics of the United States, the "Thurmond rule" posits that at some point in a presidential election year, the United States Senate will not confirm the president's nominees to the federal judiciary, or will confirm nominees only under certain circumstances. The practice is not an actual "rule" and has not been followed in the past, with presidents continuing to appoint and the Senate continuing to confirm judicial nominees during election years. Although described by experts as a myth, the "rule" has been inconsistently invoked by senators from both political parties, usually when politically advantageous to do so.
Description and non-application
The "Thurmond rule" idea "has its origins in June 1968, when Senator Strom Thurmond, Republican of South Carolina, blocked President Lyndon B. Johnson's appointment of Justice Abe Fortas as chief justice." The "rule" has been variously described:
- A 2008 Congressional Research Service report described "a practice referred to by some as the 'Thurmond rule'" under which "at some point in a presidential election year, the Judiciary Committee and the Senate no longer act on judicial nominations — with exceptions sometimes made for nominees who have bipartisan support from Senate committee and party leaders."
- The New York Times, in 2016, reported that the rule "is not an actual rule, which means there is no way to adjudicate how close to an election it applies, or whether it applies at all."
- Al Kamen of the Washington Post, in 2012, wrote: "The 'rule,' which apparently dates to 1980, posits that, sometime after spring in a presidential election year, no judges will be confirmed without the consent of the Republican and Democratic leaders and the judiciary chairman and ranking minority member."
- CBS News, in 2007, described "an informal understanding ... that only consensus nominees, if that, would be considered in the latter part of a presidential election year."
- The American Constitution Society refers to the "rule" as an "urban legend of judicial nominations" that "never became a 'rule' at all, and as such, it can be disregarded for good reason–it is the Thurmond Myth."
- The Alliance for Justice has written: "The Thurmond Rule is not real. It is a myth, a figment of the partisan imagination invoked to give an air of legitimacy to a strategy—blocking even the most noncontroversial of judicial nominees—that is pure obstruction. Most obviously, there is no Thurmond Rule in the formal sense—no law, senate rule, or bipartisan agreement renewed each congress. Its existence also is belied by historical practice."
- American Bar Association President Wm. T. (Bill) Robinson III, in a 2012 letter sent to Senate leadership of both parties, wrote: "As you know, the 'Thurmond Rule' is neither a rule nor a clearly defined event." Robinson wrote that while "the ABA takes no position on what invocation of the 'Thurmond Rule' actually means or whether it represents wise policy," the practice is not a precedent, given the fact "that there has been no consistently observed date at which this has occurred during the presidential election years from 1980 to 2008."
The "rule" is not observed consistently by the Senate. A 2012 study by judicial expert Russell Wheeler of the Brookings Institution showed that in each of the four previous presidential election years (1996, 2000, 2004, and 2008), the pace of federal judicial nominations and confirmations slowed but did not stop. Wheeler describes the "rule" as a myth, noting that while it becomes more difficult for a president to push through his nominees in his last year of office, nominations and confirmations have been routinely made in presidential election years. Similarly, a 2008 Congressional Research Service report could not identify any "consistently observed date or point in time after which the Senate ceased processing district and circuit nominations during the presidential election years from 1980 to 2004." For instance, in December 1980, Stephen Breyer (who later became an Associate Justice of the Supreme Court of the United States) was confirmed as a judge of the United States Court of Appeals for the First Circuit. Additionally, in 1984, when Thurmond was chair of the Senate Judiciary Committee, judicial confirmations occurred that fall.
Politifact has rated the claim that "there comes a point in the last year of the president, especially in their second term, where [the president] stop[s] nominating" both Supreme Court justices and Court of Appeals judges as "false."
Sarah A. Binder, a senior fellow at the Brookings Institution, notes that although studies have shown "that there is no such formal 'rule,'" this "hasn't stopped senators from either party from talking about the practice as a rule or often even as a doctrine. Because both parties have, over time, valued their ability to block the president's judicial nominees, keeping alive the Thurmond Rule has proved convenient for both parties at different times." Glenn Kessler and Aaron Blake of the Washington Post note that senators of both political parties—such as Mitch McConnell and Pat Leahy—frequently flip-flop on the issue of judicial nominations in presidential election years, alternately invoking the Thurmond Rule and denying its validity, depending on which party controls the Senate and the White House. For example, in 2004, when George W. Bush was president, Republican Senator Orrin Hatch of Utah dismissed the rule, saying "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." Conversely, in 2008, Democratic Senator Dianne Feinstein of California had invoked the "rule" in saying that the Senate should not act on any judicial appointments made by Bush in his last year in office, and in response, a Bush White House spokeswoman said that the "only thing clear about the so-called 'Thurmond Rule' is that there is no such defined rule." Kessler concludes that "both parties can be viewed as hypocritical, situational and prone to flip-flopping, depending on which party holds the presidency and/or the Senate."
The Thurmond Rule was raised again in public discourse in February 2016 after the death of Supreme Court Justice Antonin Scalia. President Barack Obama said he would nominate a candidate for the open seat, but with just under one year remaining in Barack Obama's second term, Republicans both in the Senate and running for President claimed the Thurmond Rule as a basis for categorically refusing to vote on any Obama nominee.
- Appointment and confirmation to the Supreme Court of the United States
- Biden Rule
- Blue slip
- Judicial appointment history for United States federal courts
- Recess appointment
- Senatorial courtesy
- Daniel Victor, What Is the 'Thurmond Rule'?, New York Times (February 13, 2016).
- Denis Steven Rutkus & Kevin M. Scot, Nomination and Confirmation of Lower Federal Court Judges in Presidential Election Years, Congressional Research Service (August 13, 2008).
- Al Kamen, Judicial Nominees: Beware the Thurmond Rule, Washington Post (February 3, 2012).
- Bush Stirs Sparks on Judges, CBS News/The Politico (October 2, 2007).
- What is the Thurmond "Rule"?, American Constitution Society (n.d.).
- Kyle C. Barry, Judicial Confirmations in 2016: The Myth of the Thurmond Rule, Alliance for Justice (January 4, 2016).
- Letter from Wm. T. (Bill) Robinson III, President, American Bar Association, to Senate Leadership (June 20, 2012).
- Russell Wheeler, Judicial Confirmations: What Thurmond Rule?, Brookings Institution (March 19, 2012).
- Linda Qiu, Do presidents stop nominating judges in final year?, Politifact (February 14, 2016).
- Geoff Earle, "Senators Spar Over 'Thurmond Rule,'" The Hill (July 21, 2004), p. 4.
- Sarah A. Binder, 'Tis the Season for the Thurmond Rule, Brookings Institution (June 14, 2012).
- Glenn Kessler, A bushel of flip-flops on approving judicial nominees, Washington Post (February 23, 2016).
- Aaron Blake, Schumer, McConnell or Leahy: Who flip-flopped the most on election-year Supreme Court nominees?, Washington Post (February 16, 2016).
- Davidson, Lee. “Griffith to miss Demos' deadline”, Deseret Morning News (2004-07-21).
- Kady, Martin II; Grim, Ryan. Nominations staredown in the Senate, Politico 5 March 2008