Revisiting the Thurmond Rule

Is Strom Thurmond still casting
a shadow over Senate procedure?
His obstructionist maneuvers from 1968
have become part of Senate folk wisdom.

Yesterday, Senate Minority Leader Mitch McConnell (R-KY) announced that Senate Republicans are invoking the “Thurmond rule” to halt the confirmation of any more circuit court judges this year. Should Senator Reid (D-NV) try to schedule a vote on an appellate court judge, the GOP members of the Senate will filibuster the confirmation and deny the nominee a chance to receive an up or down vote.

This means that the 4 circuit court nominees who have been waiting for their votes since March and April would have to stay frozen in the system until at least January 2013 before the Senate would take action to confirm them.

While much press coverage of McConnell's statement takes it as a given that the "Thurmond Rule" is an established fact of the Senate, history paints a much different picture.

The “Thurmond Rule” is a fuzzy, occasional tradition of the Senate, lodged nowhere in the formal or informal rules, which tends to be invoked in presidential election years by members of the party not holding the White House. While the “rule” is mentioned as if it is binding authority, history shows that the Senate in fact continues to confirm judicial nominees well into the fall of election years.

For example, at the end of President Bush's first term in 2004, the Senate confirmed 23 judges in the second half of the year. At the end of President Clinton's first term, 17 judges were confirmed.

Alliance for Justice has prepared a fact sheet on the "Thurmond Rule," which features an informative graph on confirmation rates during election years.

Click to Enlarge

(Note that the Senate is often in recess during nearly all of August so that senators can go home and meet with constituents or campaign for re-election; confirmation rates tend to rise back to March/April levels once the Senate resumes its business in September and October. For example, the Senate was in recess between August 2 through September 6 of 1996, and from July 26 to September 6 of 2004.)

You can download the full fact sheet here.