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Thurmond Rule

Christopher Murray Ben Grove March 15, 2016

An informal and unwritten US Senate tradition that the chamber need not act on judicial nominations during a presidential election year. The unexpected death of Supreme Court Justice Antonin Scalia, a conservative icon, immediately sparked a political battle over his replacement, with a dramatic presidential election already playing out in the background.

Advise and Consent

According to the Appointments Clause of the Constitution, the President shall nominate Supreme Court justices with the "advice and consent" of the Senate. Every Supreme Court nominee in US history received a vote by the Senate within 125 calendar days. The clock is ticking: President Obama has 324 days left in office.

The Thurmond Rule originated in 1968 when Senator Strom Thurmond (R-SC) served as Judiciary Committee Chair and opposed President Lyndon Johnson's nomination of Abe Fortas to be Chief Justice. Senator Thurmond contended that lifetime judicial appointments should not be made during the final months of a presidency. His rationale was that an incoming president had the right to fill open vacancies on federal benches, and an outgoing president could be inclined to tilt the political balance of the courts in his or her favor. Thurmond successfully defeated Fortas's nomination, and consequently, similar, subsequent challenges have been referred to as the Thurmond Rule.

A Few Good Men

The practice of confirming Supreme Court justices during election years, though rare, is not unprecedented. Six justices have been confirmed in presidential election years since 1900. The most recent Supreme Court confirmation in an election year was Justice Anthony Kennedy, though Kennedy's confirmation began in 1987. In the wake of the failed nomination of Robert Bork, President Reagan settled on Kennedy as a less controversial nominee. Kennedy was unanimously confirmed by the Senate in February 1988.

Reversal of Fortune

Like its namesake, the Thurmond Rule is divisive, and many contend that the parties only apply it out of self-serving, ideological convenience. Democrats and Republicans alike, including Vice President Biden while serving as Chair of the Judiciary Committee in 1992, have issued contradictory statements over the years on the Senate's role in confirming justices in presidential election years. Republicans in the Senate announced last month that they will not hold hearings, confirm, or even meet with a proposed nominee. President Obama has argued that he has the constitutional authority to nominate justices throughout his entire term. Many Senate Republicans respond that the Senate has its own, balancing constitutional authority to give or withhold its advice and consent to judicial nominees as it sees fit. This tension is heightened by the fact that the final outcome of this fight will have far-reaching consequences.