Reject the ‘Thurmond Rule’

The late Strom Thurmond is best known for his 48 years in the U.S. Senate representing South Carolina, his segregationist candidacy for the presidency in 1948 and the fact that even though he was a longtime opponent of racial equality, he fathered a child with a black teenage housekeeper. But Thurmond also lent his name to the so-called Thurmond Rule, according to which Senate action on judicial confirmations is supposed to stop several months before a presidential election.

The rule — actually a custom that sometimes has been honored in the breach — goes back to 1968, when Thurmond and other Republicans held up action on President Johnson’s nomination of Abe Fortas to be chief justice of the United States. Fortas withdrew in the face of a filibuster, and President Nixon, the Republican victor in the 1968 election, was able to choose a successor to the retiring Earl Warren. In subsequent years, senators of both parties have cited the Thurmond/Fortas episode as a precedent for not acting on judicial nominations close to an election.

Even in the case of a Supreme Court appointment, the Thurmond Rule violates the spirit of the Constitution, which doesn’t distinguish between nominations made earlier or later in a president’s term. It is less defensible still in connection with nominations to lower courts. Yet Senate Minority Leader Mitch McConnell (R-Ky.) told colleagues last month that he was immediately invoking the rule to end nominations to the U.S. Court of Appeals, and would block confirmation votes on nominees to federal district courts after September.

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Such delays are a disservice to the nominees and to an overburdened federal judiciary. At present there are 12 vacancies on federal appeals courts, 63 on district courts and two on the U.S. Court of International Trade. The Obama administration, although it has been slow to fill vacancies, currently is proposing seven candidates for the appeals court and 28 for the district courts. The Senate should hold up-or-down votes on these nominations and any others put forward in the near future.

Apart from the Thurmond Rule, the timely confirmation of judicial nominees has long been frustrated by petty partisanship. Democrats and Republicans share the blame. The most recent logjam was broken in March when Republicans agreed to timely votes on 14 nominations.

Obviously Republicans hope that Barack Obama is a lame-duck president, but even lame-ducks are entitled to expeditious consideration of their nominations. And the administration of justice shouldn’t be held hostage to partisan politics even in an election year.