But the upshot is straightforward: The
Senate won’t be confirming many — or perhaps any —
more of the president’s judicial nominees.
By invoking the Thurmond Rule, Democrats may be able to attach legitimacy
to their ongoing campaign against some President Bush’s controversial
nominees in a chamber that reveres history and precedent.
Even some of the most skillful senators aren’t quite sure
whether the Thurmond Rule is really a rule at all. Some call it
a “precedent.” Others term it a “general understanding.”
Some have never even heard of it.
Asked about the rule, named for the late Sen. Strom Thurmond (R-S.C.),
Sen. Trent Lott (R-Miss.) could only come up with a guess at what
it might mean: for a senator to stay in the Senate “until
you can’t walk.”
But the rule has nothing to do with Strom Thurmond’s record-breaking
career of service in the Senate into the last years of his life.
Nor does it relate to the late senators’ tendency to pass
out hard candy to attractive women he encountered in the Senate.
The rule, according to one senior Democratic senator who didn’t
want to be quoted by name is as follows: “In election years,
judges are not normally brought up after July first.” Democrats
have started referring to the rule when protesting the Judiciary
Committee’s continued action on judicial nominees, including
a committee markup yesterday of both controversial and noncontroversial
nominees.
“People say: ‘Why are we voting on judges? Wasn’t
there a Thurmond rule?’” said the senator.
Sen. Patrick Leahy (D-Vt.) has referred to the rule at Judiciary
hearings for the last few weeks. Leahy believes that since the Senate
has already confirmed 198 judges during President Bush’s term,
the time for confirming judicial nominees is essentially over.
Even some individual interpretations of the Thurmond Rule have changed
over time. In 1997, Leahy said on the Senate floor that the “so-called”
Thurmond rule kicks in “about the last few months of [the
president’s] term in office,” and faulted Republicans
for stalling nominees in the first hours of President Clinton’s
second term.
On July 12, 2000, near the end of the Clinton administration, Leahy
said on the floor, “We cannot afford to follow the Thurmond
Rule and stop acting on these nominees now in anticipation of the
presidential election in November.” In October of 2000, Leahy
said the rule “cuts off judicial nominations after about midyear.”
Republicans acknowledge that there is a Thurmond Rule, or at least
a precedent dating back to the days when Thurmond chaired the Judiciary
Committee.
But one senior Republican aide said the tradition was a general
understanding that there would be no floor votes on controversial
nominees, rather than an understanding that there would be no action
on nominees at all.
Republicans are already planning to schedule a series of votes in
the fall on controversial nominations in what Democrats say is a
plan to rev up the GOP base and make Democrats appear to be obstructionists.
“There have been lots of cases when judges have gone through
after July,” said Senate Judiciary Chairman Orrin Hatch (R-Utah).
Even the date when the Thurmond Rule would take effect is in dispute.
“Someone says it’s the fourth of July,” said Sen.
Dick Durbin (D-Ill.). Others say it takes effect once the first
political convention begins (Democrats meet in Boston next week).
According to this theory, after the first convention, “the
nomination process stops,” Durbin said. “This is kind
of legend and lore,” he added.
According to Sen. Edward Kennedy (D-Mass.), who has served on the
committee for years, the Thurmond rule means that “for all
intents and purposes, we’d leave it,” meaning not confirm
any more judges. “That having been said,” he added,
“there has always been sort of an effort to try and work through
some sort of accommodation at different times.”
Still, members don’t rule out action on widely popular nominees,
or a few district court judges. But floor action on lifetime circuit
court appointees appears highly unlikely. Durbin suggested a deal
linking judicial nominees to stalled executive appointments was
still a possibility, though.
According to a spokeswoman for Hatch, who chose not to use the word
“rule” when queried on the subject, there is no “Senate
tradition” on Judiciary Committee hearings after the convention.
She noted that in December 1980, Judge Steven Breyer was confirmed
to the Court of Appeals for the 1st Circuit.
In 1984, when Thurmond chaired the Judiciary Committee, Senate confirmations
occurred in the fall.
Aides noted that the Thurmond Rule dates back to a more collaborative
time when committee members and party leaders would sometimes agree
to move judges by mutual understanding. Others said the main issue
is that judges deserve a vote on the floor of the Senate.
“We should not filibuster Bush judges, and we should not filibuster
Kerry judges,” said Lott, referring to Sen. John Kerry. “Even
if Kerry wins, which I don’t think he will, we should not
filibuster his judges.” |
