Senate Minority Leader Mitch McConnell (Ky.) made the decision to blockade nominations official Wednesday when he informed his colleagues that he would invoke the “Thurmond Rule” from now until after the elections.
Named after the late Sen. Strom Thurmond (R-S.C.) — and alternately called the “Leahy Rule” by some Republicans after Judiciary Chairman Patrick Leahy (D-Vt.) — the doctrine holds that within six months of a presidential election, the opposition party can, and typically does, refuse to allow votes on circuit court judges.
First of all, there is no doctrine saying that court of appeals judges cannot be confirmed six months before an election. According to data from the Federal Judicial Center, President Carter had 5 appeals judges confirmed between this day in 1980 and that year’s election, one of whom was future Justice Ruth Bader Ginsburg. President Reagan had 7 in his first term and 2 in his second. The first President Bush had 7. No appellate judges were confirmed in the lead up to the 1996 election, but one was confirmed at the end of President Clinton’s second term. The second President Bush had 3 confirmed during this period in 2004 and 2 in 2008.
In other words, if history is any guide, the supposed ban on late term confirmations does not exist, and it has never existed except arguably during the Clinton presidency, when then-Judiciary Committee Chair Orrin Hatch (R-UT) routinely played Calvinball with the Senate’s rules in order to keep President Clinton’s judges from being confirmed.
Indeed, in 2004, when George W. Bush was in the White House, Senate Republicans had very different things to say about the nature of the Thurmond Rule. In Hatch’s words, “”There is no ‘Thurmond Rule’ . . . . we’re going to keep on pushing ahead on judges and hopefully get a number of them through before the end of the year.”