On July 29 The Heritage Foundation published a post on its blog, The Foundry, that called for the filibuster of Oklahoma Judge Robert Bacharach's bipartisan-supported nomination to the U.S. Court of Appeals for the Tenth Circuit. However, as the post noted, the unwritten Senate procedure that is the "Thurmond Rule" typically blocks a sitting president's judicial nominations at some point prior to a presidential election only if they are "cronies and ideologues." As a consensus pick, Judge Bacharach is clearly neither.
The Thurmond Rule is named after the late segregationist Senate Judiciary Committee Chairman Strom Thurmond (R-SC) and generally refers to the long-standing practice of the opposition party in the Senate blocking most judicial nominees after a certain date in the run-up to a presidential election. A successful filibuster tonight of Judge Bacharach's consensus bipartisan-supported nomination could well be an unprecedented and extreme extension of the practice at a time when judicial vacancies have become a crisis.
This so-called rule is nothing more than an unwritten and unrequired historical practice that has been used by both parties. But CQ Today reported on July 27 (via Nexis), "[n]o appeals court nominee who received bipartisan support in committee has ever been successfully filibustered on the floor." This inapplicability of the Thurmond Rule to consensus nominees has support in an analysis of the rule's application in a much-cited 2008 Congressional Research Service report that noted:
[T]he Senate is more likely to move forward late in presidential election years with what they view as "consensus" nominees. Some Senators have suggested that a nominee could be considered as a consensus choice if he or she has the support of both home state Senators.
While there may be disagreement as to which nominees are "consensus" nominees, the support of both home-state Senators (particularly if the Senators are of the opposition party) is an important indicator of the President's willingness to work with individual Senators when making nominations. [Congressional Research Service, 8/13/12]
Because the Foundry post appeared to recognize this point by stating the Thurmond Rule applies to "cronies and ideologues," it is peculiar that the post simultaneously called for Senate Republicans not to "hold their manhood cheap" and instead filibuster Judge Bacharach. The judge was not only rated to be unanimously "well-qualified" by the American Bar Association due to his "stellar professional qualifications," but also has the support of both of his conservative home-state Senators, Republicans James Inhofe and Tom Coburn. Considering Republican Senators Susan Collins and Olympia Snowe have already committed to voting to end the filibuster and his nomination "sailed through the Senate Judiciary Committee last month," criticism of the judge as a crony or an ideologue is unfounded. Senator Coburn has already gone on the record with his home-state paper as claiming application of the Thurmond Rule to Judge Bacharach would be "stupid" and:
"I believe that Judge Bacharach will uphold the highest standards and reflect the best in our American judicial tradition by coming to the bench as a well-regarded member of the community," Coburn said. "At a time when our country seems as divided as ever, it is important that citizens respect members of the judiciary and are confident they will faithfully and impartially apply the law." [NewsOK, 6/8/12]