The Thurmond rule in U.S. politics posits that at some point in a U.S. presidential election year, the U.S. Senate will not confirm the president's nominees to the federal judiciary except under certain circumstances.
The practice is not an actual rule - and has been described by experts as a myth. It has not always been followed in the past, with presidents continuing to appoint and the Senate continuing to confirm judicial nominees during election years, but nevertheless, inconsistently invoked by senators from both political parties, usually when politically advantageous to do so.
The Thurmond rule "has its origins in June 1968, when Senator Strom Thurmond, Republican of South Carolina, blocked President Lyndon B. Johnson's appointment of Justice Abe Fortas as chief justice."The "rule" has been variously described:
at some point in a presidential election year, the Judiciary Committee and the Senate no longer act on judicial nominations — with exceptions sometimes made for nominees who have bipartisan support from Senate committee and party leaders.
The 'rule,' which apparently dates to 1980, posits that, sometime after spring in a presidential election year, no judges will be confirmed without the consent of the Republican and Democratic leaders and the judiciary chairman and ranking minority member.
The "rule" is not observed consistently by the Senate. A 2012 study by judicial expert Russell Wheeler of the Brookings Institution showed that in each of the four previous presidential election years (1996, 2000, 2004, and 2008), the pace of federal judicial nominations and confirmations slowed but did not stop.Wheeler describes the "rule" as a myth, noting that while it becomes more difficult for a president to push through his nominees in his last year of office, nominations and confirmations have been routinely made in presidential election years. Similarly, a 2008 Congressional Research Service report could not identify any "consistently observed date or point in time after which the Senate ceased processing district and circuit nominations during the presidential election years from 1980 to 2004." For instance, in December 1980, Stephen Breyer (who later became an Associate Justice of the Supreme Court of the United States) was confirmed as a judge of the United States Court of Appeals for the First Circuit. Additionally, in 1984, when Thurmond was chair of the Senate Judiciary Committee, judicial confirmations occurred that fall.
Politifact has rated the claim that "there comes a point in the last year of the president, especially in their second term, where [the president] stop[s] nominating" both Supreme Court justices and Court of Appeals judges as "false."
Sarah A. Binder, a senior fellow at the Brookings Institution, notes that although studies have shown "that there is no such formal 'rule,'" that "hasn't stopped senators from either party from talking about the practice as a rule or often even as a doctrine. Because both parties have, over time, valued their ability to block the president's judicial nominees, keeping alive the Thurmond Rule has proved convenient for both parties at different times." —such as Mitch McConnell and Pat Leahy —frequently flip-flop on the issue of judicial nominations in presidential election years, alternately invoking the Thurmond Rule and denying its validity, depending on which party controls the Senate and the White House. For example, in 2004, when George W. Bush was president, Republican Senator Orrin Hatch of Utah dismissed the rule, saying "Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me." Kessler concludes that "both parties can be viewed as hypocritical, situational and prone to flip-flopping, depending on which party holds the presidency and/or the Senate."Glenn Kessler and Aaron Blake of the Washington Post note that senators of both political parties
The Thurmond Rule was raised again in public discourse in February 2016 after the death of Supreme Court Justice Antonin Scalia. President Barack Obama said he would nominate a candidate for the open seat, but with just under one year remaining in Barack Obama's second term, Republicans claimed the Thurmond Rule for categorically refusing to vote on any Obama nominee.[ citation needed ].
Following the death of Justice Ruth Bader Ginsburg in September 2020, just over a month and a half before the next presidential election, Senate Majority Leader McConnell said that in contrast with 2016, recent Republican gains in 2018 midterm elections would allow a Republican Supreme Court nomination to go forward in the Senate during a presidential election year.
The Supreme Court of the United States is the highest ranking judicial body in the United States. Established by Article III of the Constitution, the detailed structure of the Court was laid down by the 1st United States Congress in 1789. Congress specified the Court's original and appellate jurisdiction, created 13 judicial districts, and fixed the initial size of the Supreme Court. The number of justices on the Supreme Court changed six times before settling at the present total of nine in 1869. A total of 114 justices have served on the Supreme Court since 1789. Justices have life tenure, and so they serve until they die in office, resign or retire, or are impeached and removed from office.
Addison Mitchell McConnell Jr. is an American politician serving as Kentucky's senior United States senator and as Senate majority leader. McConnell is the second Kentuckian to serve as a party leader in the Senate, the longest-serving U.S. senator for Kentucky in history, and the longest-serving leader of U.S. Senate Republicans in history.
Merrick Brian Garland is an American lawyer and jurist who serves as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He has served on that court since 1997.
Speculation abounded over potential nominations to the Supreme Court of the United States by President George W. Bush since before his presidency.
The nuclear option is a parliamentary procedure that allows the United States Senate to override a standing rule of the Senate, such as the 60-vote rule to close debate, by a simple majority of 51 votes, rather than the two-thirds supermajority normally required to amend the rules. The option is invoked when the majority leader raises a point of order that contravenes a standing rule, such as that only a simple majority is needed to close debate on certain matters. The presiding officer denies the point of order based on Senate rules, but the ruling of the chair is then appealed and overturned by majority vote, establishing new precedent.
The Gang of 14 was a phrase coined to describe the bipartisan group of Senators in the 109th United States Congress who successfully, at the time, negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called "nuclear option" by Senate Republicans over an organized use of the filibuster by Senate Democrats. The term alludes to the phrase "Gang of Four", used in China to refer to four ex-leaders blamed for the abuses during the rule of Mao Zedong.
Richard Allen Griffin is a United States Circuit Judge of the United States Court of Appeals for the Sixth Circuit. Previously, he was a judge on the Michigan Court of Appeals.
During President George W. Bush's two term tenure in office, a few of his nominations for federal judgeships were blocked by the Senate Democrats either directly in the Senate Judiciary Committee or on the full Senate floor in various procedural moves, including the first use of a fillibuster to block a Federal Appeals Court nominee. Republicans labeled it an unwarranted obstruction of professionally qualified judicial nominees.
During President Ronald Reagan's presidency, he nominated at least twelve people for various federal appellate judgeship who were not confirmed. In some cases, the nominations were not processed by the Democratic-controlled Senate Judiciary Committee before Reagan's presidency ended, while in other cases, nominees were rejected by the Senate Judiciary Committee or even blocked by unfriendly members of the Republican Party. Three of the nominees were renominated by Reagan's successor, President George H. W. Bush. Two of the nominees, Ferdinand Francis Fernandez and Guy G. Hurlbutt, were nominated after July 1, 1988, the traditional start date of the unofficial Thurmond Rule during a presidential election year. Eight of the twelve seats eventually were filled by appointees of President George H. W. Bush.
Patricia Ann Millett is a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. She formerly headed the Supreme Court practice at the law firm Akin Gump Strauss Hauer & Feld. Millett also was a longtime former assistant to the United States Solicitor General and served as an occasional blogger for SCOTUSblog. At the time of her confirmation to the D.C. Circuit, she had argued 32 cases before the United States Supreme Court. In February 2016 The New York Times identified her as a potential nominee to replace Justice Antonin Scalia.
During his two terms in office, President Dwight D. Eisenhower appointed five members of the Supreme Court of the United States: Chief Justice Earl Warren, and Associate Justices John Marshall Harlan, William Brennan, Charles Evans Whittaker, and Potter Stewart.
The nomination, confirmation, and appointment of Justices to the Supreme Court of the United States involves several steps set forth by the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States and must face a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee, which can vote to send the nomination to the full United States Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the court. The Constitution does not set any qualifications for service as a Justice, thus the President may nominate any individual to serve on the Court.
U.S. President Barack Obama nominated over four hundred individuals for federal judgeships during his presidency. Of these nominations, Congress confirmed 329 judgeships, 173 during the 111th & 112th Congresses and 156 during the 113th and 114th Congresses.
Joan Louise Larsen is an American attorney and jurist serving as a United States Circuit Judge of the United States Court of Appeals for the Sixth Circuit. She previously was an Associate Justice of the Michigan Supreme Court from 2015 to 2017.
On March 16, 2016, President Barack Obama nominated Merrick Garland for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit.
On January 31, 2017, soon after taking office, President Donald Trump, a Republican, nominated Neil Gorsuch for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died almost one year earlier. Then-president Barack Obama, a Democrat, nominated Merrick Garland to succeed Scalia on March 16, 2016, but the Republican-controlled U.S. Senate did not vote on the nomination. Majority leader Mitch McConnell declared that as the presidential election cycle had already commenced, it made the appointment of the next justice a political issue to be decided by voters. The Senate Judiciary Committee refused to consider the Garland nomination, thus keeping the vacancy open through the end of Obama's presidency on January 20, 2017.
Ryan Wesley Bounds is an American attorney serving as an Assistant United States Attorney for the District of Oregon. Bounds had been a nominee for a position as a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit.
President Donald Trump entered office with a significant number of judicial vacancies, including a Supreme Court vacancy due to the death of Antonin Scalia in February 2016. During the first eight months of his presidency, he nominated approximately 50 judges, a significantly higher number than any other recent president had made by that point in his presidency. By June 24, 2020, 200 of his Article III nominees had been confirmed by the United States Senate.
On September 26, 2020, President Donald Trump announced the nomination of Judge Amy Coney Barrett to the position of Associate Justice of the Supreme Court of the United States to fill in the vacancy left by the death of Ruth Bader Ginsburg. At the time of her nomination, Barrett was a Judge of the United States Court of Appeals for the Seventh Circuit. The Senate received word from the president on September 29.