by Harsh Voruganti, Founder and Principal of the Voruganti Law Firm
As of today, July 15, 2016, there are currently 84 vacant Article III federal judgeships across the country, with over a dozen more that will come open in the next few months. In other words, approximately one in ten federal judgeships is currently sitting vacant, leading to judicial backlogs in the affected courts. Unfortunately, due to an obscure Senate theory called the Thurmond Rule, this vacancy rate will only increase in the coming weeks.
Despite its moniker, the Thurmond Rule is not a formal Senate rule, but rather an informal theory. Under this theory, at some point in a Presidential election year, the Senate will cease considering judicial nominations presented by the President and leave their respective vacancies open for the next President to fill. The exact date at which the Thurmond Rule is triggered is unclear, with some arguing that June 1 is the date the Thurmond Rule is initiated. For his part, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) has indicated his plan to trigger the Thurmond Rule upon the Senate recess in mid-July.
The origin of the Thurmond Rule is unfortunately unclear. Democrats citing the “rule” during George W. Bush’s Presidency dated it back to Sen. Strom Thurmond’s (R-SC) blocking of judicial nominations made by the Carter Administration in 1980. However, others argue that the rule had its origins in the failed nomination of Abe Fortas to be Chief Justice of the Supreme Court in 1968. The “rule” has been cited by both Democratic and Republican Senators in supporting their decision to slow down the judicial nominations of an opposition President.
Regardless of the rhetoric on the issue, there is virtually no precedent for a complete shutdown of judicial nominations upon the summer recess. Looking back at the final years of the Carter, Reagan, H.W. Bush, Clinton, and W. Bush Presidencies, each Presidency has seen confirmations of judges occur after the summer recess. In 1980, when the Thurmond Rule was supposedly first invoked, the Senate confirmed two circuit court judges and eleven district court judges after the August recess. In 1988, a Democratic-majority Senate confirmed two circuit court judges and nine district court judges after the August recess. In 1992, a Democratic-majority Senate confirmed three circuit court judges and nine district court judges post-August. In 2000, a Republican-majority Senate confirmed four district court judges in October. In 2008, a Democratic-majority Senate confirmed ten district court judges in late September. Since the “inception” of the Thurmond Rule, every single President has seen district court confirmations post-recess, and three of the last five have seen circuit court confirmations. Averaging out the numbers, a President could reasonably expect one circuit court confirmation and nine district court confirmations post-recess. As there are currently nineteen judicial nominees pending on the Senate Executive Calendar, there is no reason why President Obama cannot see similar confirmation rates.
Additionally, many of the nominees confirmed in previous Congresses were nominated and processed late in the Presidential election season. In 1980, the Senate confirmed one judge in December, Justice Stephen Breyer, who was nominated after the Presidential election. In 2008, the Senate Judiciary Committee, under the Chairmanship of Patrick Leahy, held a hearing on ten district court nominations in mid-September, voting and confirming the nominees before the end of the month. Presidents Ronald Reagan and Bill Clinton saw their last judicial confirmations in October of their final term, while Presidents George H.W. Bush and George W. Bush saw theirs in late September.
The judicial confirmation pipeline in the Senate today has slowed to a crawl. In contrast to 68 judges confirmed by a Democratic Senate in the last two years of the Bush presidency, only 20 judges have been confirmed by the Republican Senate this Congress. Furthermore, judicial nominees have faced particularly long waits on the Senate floor, with the longest, Jeanne E. Davidson (U.S. Court of International Trade), having waited since February 2015 for a Senate vote. With Senator Grassley’s looming threat to implement the Thurmond Rule, the wait for confirmation votes will likely get worse, not better.
Looking at the actual practice of the Thurmond Rule, there is no precedent supporting a shutdown of judicial confirmations after the summer recess. Rather, if one looks at the historical information, the Senate maintains a responsibility to continue processing judicial nominations into late September and October. If the Senate fails to meet that goal, it cannot rely on the Thurmond Rule as a defense.