July 14, 2008

There is No "Thurmond Rule"

The oral testimony and written statement of expert witness Denis Steven Rutkus, a federal judiciary specialist for the Congressional Research Service (CRS), confirmed Senator Specter's suspicions today regarding the so-called "Thurmond Rule" at the Senate Republicans Committee hearing. (Transcript available here).

The phrase was coined after the late Senator Strom Thurmond for his role in supposedly encouraging presidential candidate Ronald Reagan and Senate Republicans to stall on President Carter's remaining judicial nominees in the election year of 1980. However, as the CRS report points out, the "The Judiciary Committee continued to hold hearings and report judicial nominations during August and September ... The Senate in turn, in September, confirmed 12 judicial nominations (11 district, one circuit)." So even the initial utilization of "Thurmond Rule" by Senate Republicans during the 1980 election is questionable at best. And looking at how many judicial nominees have been confirmed in election years ever since then, Mr. Rutkus comments that we have not seen its effective application until now. As reported in Jurist, "the average time for the Senate to take final action on a successful district court nominee has almost tripled [nomination chart]."

Chairman Leahy, spurred on by interest groups like People for the American Way, has increasingly relied upon the "Thurmond Rule" as if it is a legitimate procedural mechanism to stall votes on well qualified and noncontroversial nominees to vacant emergency benches. To the contrary, Rutkus summarized his nonpartisan research by concluding, "There is no written rule regarding the slowing down of judicial confirmations in an election year."

Other witnesses at the hearing included Professor John McGinnis of Northwestern Law School, Former U.S. Attorney Roscoe C. Howard, and Assistant Executive Director of the North Carolina Bar Association David Bohm. All expressed deep concerns that the the use of the "Thurmond Rule"' to slow down the confirmation process during election years is resulting in unnecessary costs and delays, forum shopping, and loss of faith in the judicial system.

Senator Cornyn suggested that it is time for the Senate to move beyond these partisan maneuvers and enter a new chapter of responsible judicial confirmations: "These nominees [i.e. P. Keisler, B. Conrad, S. Mathews, R. Rosenstien, etc.] have not had the chance to be heard. And some of them have suffered personal attacks with no chance of rebuttal ... The judicial nomination process is broken ... No one can remember how the feud began but we should bring an end to it. Now is the perfect time to fix this, as we do not know who will be the president next year."

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