On Judicial Nominations, Media Should Focus On Vacancy Crisis, Not Thurmond "Rule"

Blog ››› ››› DAVID LYLE

The Senate is scheduled to consider the nomination of Paul Watford, one of President Obama's stalled judicial nominees, on May 21. Journalists covering the debate on the nomination would do well to consider the judicial vacancy crisis that is denying many Americans their day in court, Watford's record, and the bipartisan support his nomination has received. They need not, however, devote much attention to the so-called "Thurmond Rule." The "rule," which some have argued is a reason for the Senate to slow or even halt the confirmation of judges during a presidential election year, turns out to have been so inconsistently applied over the years that it is less a rule than a free-floating excuse for obstruction. In the face of a judicial vacancy crisis, such a vague and standard-free "rule" deserves little weight.

There is a real judicial vacancy crisis in the federal courts, with more than more than 75 judgeships currently vacant. Over 30 "judicial emergencies" exist, in which vacancies leave courts so understaffed that cases pile up and people and businesses seeking justice are faced with lengthy delays in having their cases heard. The crisis is in large part the result of unprecedented obstruction President Obama's nominees have faced. Presidents Clinton and Bush had just over 200 lower court judges confirmed during their first terms, but after three and a half years of the Obama presidency, the Senate has confirmed only 145 of his judicial nominees. The vacancy crisis will persist, and deepen as a result of additional retirements, unless the Senate picks up the pace.

The vote on Paul Watford's nomination could say a lot about whether it will do so. Senate Majority Leader Harry Reid has broken a threatened filibuster of Watford's nomination, and a vote will take place today. Journalists covering the vote might want to look into to Watford's record as a former Supreme Court clerk and the endorsements he has received from leading conservative and libertarian lawyers, including leaders of the Federalist Society.

Some have also raised the so-called Thurmond Rule (attributed to former Senate Judiciary Committee Chairman Strom Thurmond) as a factor to consider regarding nominations. Already in January 2012 Senator Charles Grassley, the ranking minority member of the Senate Judiciary Committee, invoked the rule as a justification for an even slower pace by the Senate on judicial confirmations. Journalists need not, however, spend much time puzzling over the so-called rule in trying to understand either Watford nomination or the Senate's broader role in the nominations process.

The rule (which seems to have a different meaning for everyone who cites it) stands for the general proposition that at some point in a presidential election year, the party opposed to the president will begin to block nominees it believes to be controversial. The goal is to leave judgeships vacate in the hope that the opposition party's candidate will win the upcoming election and thus be in a position to fill the resulting vacancies. That does not mean that the Senate has consistently stopped confirming judges in presidential election years; for example, ten of President George W. Bush's district court nominees were confirmed on September 26, 2008, quite near the end of Bush's second term.

Experts from the nonpartisan Congressional Research Service who have studied the issue have concluded that although confirmations have tended to slow in presidential election years, there is neither a written rule regarding the practice, nor an informal consensus regarding how it should be applied. Most importantly, over numerous election cycles from 1980 to 2004, there was "no consistently observed date, or point in time, after which the Senate Judiciary Committee or the Senate ceased processing lower court nominations." Even conservative commentator Ed Whelan of National Review has observed, the Senate has confirmed numerous nominees after July 4 in each of the last four presidential election years.

Whatever the Thurmond "rule" might mean, in light of its murky nature it is difficult to see how it provides adequate grounds for the Senate to abandon its constitutionally-mandated duty to provide "advice and consent" on judicial nominees, especially during a judicial vacancy crisis. Only action, not more delay and obstruction, can address the crisis. The vote on the Watford nomination will go far in determining which path the Senate, and especially the opponents of President Obama's nominees, will take.

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Courts Matter
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