(Disclosure: I’m the proud spouse of the author, and sharing his latest Daily Beast piece here with his full blessing.)
Jay Michelson, writing for the Daily Beast, describes in full detail what the so-called “Thurmond Rule” was, what it’s become — and how the Senate’s latest posturing on the heels of Justice Scalia’s sudden death is posturing that has no precedent.
What it was: The “Thurmond Rule” originated from Strom Thurmond’s leadership of the Republicans’ fierce opposition to LBJ’s nomination of Abe Fortas for Chief Justice in June 1968, just four months prior to the November 1968 presidential election. It worked — Fortas’ nomination was withdrawn in a cloud of tumult.
What it’s become: An idea, invoked by Republicans only when convenient, that a sitting Democratic president should not nominate a SCOTUS justice in June or later, in the year of a Presidential election. However, as Jay writes here and many on DailyKos were quick to point out, the GOP sure was singing a different tune in 2007-2008:
A spokesman for Mitch McConnell said that the Senate should confirm judicial appointees through at least the summer. The cutoff for confirming judges in an election year, known as the ‘Thurmond Rule,’“doesn’t need to be June, especially because we’re so far behind on the legislative calendar,” he said.
Similarly, Senator Jeff Sessions (R-AL) said, “Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election.”
Even a Bush spokesperson said that the “only thing clear about the so-called ‘Thurmond Rule’ is that there is no such defined rule.”
Jay's piece is worth reading in full, but here in brief are his points on how almost-absurd the hypocrisy and grandstanding are, in the current circumstances:
First, the Thurmond Rule has never been extended back this far. In 2008, Democrats didn’t invoke it until the late summer; Senator Dianne Feinstein said it kicks in after the first party convention. It’s February now, and even the longest Supreme Court confirmation in history – that of Justice Brandeis, in 1916 – took 125 days. (Brandeis was called a “radical” and bitterly opposed by conservatives, with antisemitism even more overt than Fortas later faced.) So this would be an unprecedented expansion of the “Rule.”
Second, the ‘Rule’ has never been applied to Supreme Court vacancies. On the contrary, when President Reagan nominated Anthony Kennedy* to the court, he was confirmed 97-0 on February 3, 1988, with Senator McConnell voting in favor.
*Jay goes on to convey that the Kennedy appointment was unusual, as it was a breakthrough after the Bork nomination (which failed) left SCOTUS stuck at eight seats for many months.
Third, the statistics cut sharply against Republicans.
(see article for several paragraphs of detail)
In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.
Hopefully the Senate’s posturing will cost them *and* will fail. I was heartened to hear President Obama speak directly and assertively to the nation, as to his readiness to proceed with the nomination process, as it is not only his right but his sworn duty to do so.
Thanks for reading.