'Thurmond Rule' May Cripple Bush's Judicial Nominations

By Evan Moore | July 7, 2008 | 8:32 PM EDT

(CNSNews.com) - Confirmation of nominees to the federal bench has been one of the most contentious issues between Congress and the Bush administration. The president has won some and lost some, but a contested Senate precedent dubbed the "Thurmond Rule" may cripple any nominations for the rest of Bush's term.

The Thurmond Rule is an informal understanding that during a presidential election year no controversial judges will be considered or acted on, and only consensus nominees will go on to Senate floor votes. The policy supposedly dates back to the 1980s, when the late Sen. Strom Thurmond (R-S.C.) was chairman of the Senate Judiciary Committee.

Some observers are concerned that the current chairman of the committee, Sen. Patrick Leahy (D-Vt.), plans to invoke the rule sometime in 2008. Leahy has made numerous statements in the past to that effect.

In an interview with Cybercast News Service, Curt Levey, general counsel of the Committee for Justice, pointed out there is always a temptation for those who are in the opposite party from the president "to not fill vacancies in the hopes that the next president will be from their party."

"That temptation becomes very great when you're only a few months away from an election," Levey added.

However, Levey and others question whether the Thurmond Rule has ever actually existed.

There is no explicit deadline for the rule to take effect within the election year, and the term "consensus nominee" also has no definitive meaning.

It is generally taken to refer to nominees who have the approval of the majority and minority leaders of the Senate, as well as the chairman and ranking member of the Judiciary Committee. But the approval of home state senators has also been needed in some instances to grant a nominee a hearing and advance to a floor vote.

Quin Hillyer, associate editor of The Examiner, a Washington, D.C.-based newspaper, further points out that the Thurmond Rule has been observed to a different degree at different times.

"To my mind, the Democrats have enforced it against GOP nominees far more strictly than Republicans have enforced it against Democrats [such as during the Clinton administration]," Hillyer said.

No intention of denying hearings

Sources close to Leahy on Capitol Hill told Cybercast News Service that the chairman has no intention of explicitly denying nominees a hearing and wants to move as quickly as possible to confirm as many judges as possible.

They point to the fact that he has already presided over the approval and confirmation of more appellate and district court nominees than his predecessors, Sens. Orrin Hatch (R-Utah) and Arlen Specter (R-Pa.).

Indeed, according to Leahy's count, in 2007, the Judiciary Committee had confirmed 40 lifetime appointments to the federal judiciary and 22 appointments to the executive branch, including several top positions at the Justice Department. Six circuit judges were confirmed last year, including one controversial nominee, Judge Leslie Southwick.

In addition, they said the process of preparing for hearings takes a considerable period of time - namely, evaluating the nominee and securing recommendations from fellow senators and outside sources, such as the American Bar Association and former co-workers and employees.

And they noted that the president has not submitted a steady stream of nominees as would be optimal for orderly confirmation.

Disingenuous Leahy?

Hillyer conceded that the White House has been "pathetically slow" at forwarding the names of nominees but nevertheless said Leahy is playing fast and loose with the numbers.

The discrepancy between Leahy's success in guiding more nominations to the Senate floor during his chairmanship is, in part, due to a wide-ranging filibuster he led against the president's so-called "controversial" nominees.

During Bush's first term, when the GOP narrowly held the Senate by a 51-49 margin, the minority Democrats on the committee filibustered 20 percent of Bush's nominees to the appeals court.

Hillyer, who called Leahy's record on appellate nominees "atrocious," said he hasn't even kept up with the nominees already on his plate.

"He is counting district court nominees as well as appellate nominees, but it is, except in very rare instances, only the appellate nominees who are 'controversial,'" Hillyer said.

Levey said Leahy is conflicted.

"On the one hand, he's very liberal, and he would dearly like to stop Bush from putting a substantial number of additional people on the U.S. Courts of Appeal," Levey said.

"But on the other hand, he's got a sizeable ego, and it's very important for him to be able to say that he confirmed as many judges as Hatch did. He considers himself in competition with Hatch. He doesn't like Hatch," Levey said.

"For Senator Leahy - and the Democrats in general - to put the petty politics of revenge above the need of the American people for swift justice [is indefensible]," he added.

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