The Senate GOP has announced that they will block any appeals or supreme court nominations made by President Barack Obama until after the 2012 elections.
Senate Minority Leader Mitch McConnell, R-Ky., said in an interview with Politico that his party was invoking the “Thurmond Rule,” an unwritten and rather non-specific rule that the Senate will not take up judicial nominees in the waning days of a president’s tenure.
“We’ve reached about that point,” McConnell told Politico. “I think it’s important to underscore, the only thing the other side is adversely impacted by would be a delay of six months.”
An angry chairman
The move drew an angry response from Judiciary Committee Chair Pat Leahy, D-Vt., who cited the unprecedented number of judicial vacancies.
“I have yet to hear a good explanation as to why we cannot work to solve the problem of high vacancies for the American people,” Leahy said.
The Thurmond Rule, named for the late white supremacist Sen. Strom Thurmond, R-S.C., has different meanings and mechanisms depending on the source. The rule had its genesis during the nomination of Abe Fortas to be chief justice of the Supreme Court, a nomination which came in the final summer of President Lyndon B. Johnson’s tenure. The rule is sometimes cited as blocking nominations during the last six months of a “lame-duck” presidency, that is to say, of a president not seeking reelection. Other times, it’s cited as meaning that nominations should not advance in the latter part of an election year without consent of both party leaders.
Sometimes yes, sometimes no
The rule has been observed about as one would expect an unwritten, ill-defined rule to be observed. In 2004, Sen. Orrin Hatch, R-Ut., said that the rule did not apply, saying that when Thurmond was chair of the Judiciary Committee, he “could say whatever he wanted to, but that didn’t bind the whole committee, and it doesn’t bind me.”
The rule has often been bent or ignored. Steven Breyer was confirmed to the First Circuit Court of Appeals in December of 1980, after President Jimmy Carter had already been defeated by President Ronald Reagan. In 2008, the Democratic-controlled Senate voted to confirm 10 district court nominees in September, despite the fact that it was an election year and President George W. Bush was a lame-duck president.
Nevertheless, McConnell said he would start obstructing nominees immediately.
“[T]his has been the case for 30 years that when we we’re at this stage in the presidential election year, both sides have kind of agreed no matter which side is in the majority that you have a pause in circuit judges,” the Republican leader said. “But the person who wins the election – which could very well be a current occupant – gets to make the appointment.”
Assuming that is true, Obama might be happy with the turn of events. The Republicans have generally chosen not to let Obama make appointments no matter when in his term he chooses to make them.
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