On July 30, the Senate is scheduled to vote on the nomination of Robert E. Bacharach to the U.S. Court of Appeals for the 10th Circuit. But under a more than 30-year-old Senate procedure known as the Thurmond/Leahy Rule, during a presidential election year, the opposition party may block the confirmation of judicial nominees in the months leading up to the election.
This procedure preserves existing vacancies for the incoming President to fill and prevents an outgoing President from loading up the courts with cronies and ideologues. Thus, Senate Republicans can and should be prepared to filibuster at least the circuit court nominees to stop their confirmation before the election this November.
Liberals been howling that the Senate Republicans’ invocation of the Thurmond/Leahy Rule violates the spirit of the Constitution, is the antithesis of good governance, and is a disservice to the nominees and to an overburdened federal judiciary. Putting aside the fact that the Senate has confirmed more nominees for the current Administration than it did in a re-election year for the last Administration, Senator Patrick Leahy (D–VT), chairman of the Senate Judiciary Committee, claims that it is too early to apply the Thurmond/Leady Rule and that this is another stalling tactic by Senate Republicans to block President Obama’s nominees.
Curiously enough, Leahy is one of the biggest champions of this rule. In fact, a 2008 Congressional Research Service report documented that he is the Senator who has most frequently asserted the rule. For example, in December 2006, Leahy said that “after the spring, no judges would go through except by the consent of both [parties],” and in June 2008, he said, “We are now way past the time of a Thurmond rule…and I’m trying to respect that.”
If the Thurmond/Leahy Rule is not completely abandoned, it should be in effect now—just over three months shy of the presidential election. In mid-June, Senate minority leader Mitch McConnell (R–KY) confirmed that the rule is in effect:
We’ve reached about that point.… And this has been the case for 30 years that when we [sic] we’re at this stage in the presidential election year, both sides have kind of agreed no matter which side is in the majority that you have a pause in circuit judges.… But the person who wins the election…gets to make the appointment.
Now that Senate Republicans have laid down their marker, they should not, in the words of the Bard, hold their manhood cheap. They should be prepared to filibuster at least the future circuit court nominees, especially in light of President Obama’s continual derogation of the Senate’s prerogatives.
Senate Republicans should not be bullied by the current imperial presidency, which has been marked by unprecedented power grabs, including unconstitutional purported “recess” appointments, implementation of the DREAM Act by executive fiat, and, most recently, its illegal plan to gut the work requirement for welfare.
There are so-called “reforms” to the Senate rules that majority leader Harry Reid (D–NV) will push forward and attempt to force a vote on. But Senate Republicans should not engage in unilateral disarmament. After all, that is what the current majority did when they were in the minority.