Moments after the death of Justice Antonin Scalia was reported, Republicans in the Senate coalesced around a single message: the next president, not Barack Obama, should nominate Scalia’s successor.
When Republicans argue that Barack Obama should not nominate a Supreme Court Justice to replace Antonin Scalia, they are embracing a modified version of the “Thurmond Rule,” a concept invented by one of the Senate’s most notorious racists.
The first thing to know about the Thurmond Rule is that it is not a rule but a pronouncement by late Senator Strom Thurmond that judicial nominees should not be confirmed in the six months leading up to an election. Thurmond used his “rule” to justify blocking the nomination of Abe Fortas, who was already on the court, to Chief Justice.
Thurmond, an ardent segregationalist, was upset that Fortas and Johnson supported civil rights for African Americans. The Republicans are now seeking to extend Thurmond’s “rule” in 2015.
Since it is more than six months before the next election, even if the Thurmond rule was a rule, it wouldn’t apply in the case of the vacancy created by Scalia’s passing. What Republicans like Majority Leader Mitch McConnell and Senator Chuck Grassley are arguing for is the expansion of the concept to encompass the entire final year of Obama’s presidency.
These same leaders, however, had a much different perspective in July 2008, the final year of George W. Bush’s presidency, when they convened a meeting entitled “Protecting American Justice: Ensuring Confirmation of Qualified Judicial Nominees.” The hearing focused on the circuit court nominees at issue at the time, but featured lots of commentary on the Thurmond Rule.
Sen. Chuck Grassley (R-IA)
“[The idea that July 2008 would trigger the] Thurmond Rule – that’s just plain bunk. The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”
Today, Grassley says that “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year… it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
Sen. Lamar Alexander (R-TN)
“There’s no excuse for not considering and voting upon a well qualified judicial nominee in the United States of America today… [J]ust because it’s a presidential election year is no excuse for us to take a vacation. And we’re here. We’re ready to go to work.”
Today, Alexander says that “it is reasonable to give the American people a voice by allowing the next president to fill this lifetime appointment to the Supreme Court.”
Sen. John Cornyn (R-TX)
“[N]ow is the perfect time for a new politics of judicial confirmation to arise where Republicans and Democrats work together to confirm qualified men and women to the federal bench. Now is the perfect time because, of course, we’re in a presidential election year and no one yet knows who the next president will be. What a unique opportunity to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”
Mitch McConnell (R-KY)
“I think it’s clear that there is no Thurmond Rule. And I think the facts demonstrate that.”
Today, McConnell is leading the charge for an expanded Thurmond Rule. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” he said, immediately after Scalia’s passing.
For his part, Barack Obama intends to nominate a Scalia’s replacement. “I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” he said in a statement on Saturday.