Judicial Nominations Are In The Spotlight Following Congress’ Return From Recess

NPR: Democrats Hit Republicans Over “Historic Refusal To Even Consider” Obama SCOTUS Nominee. NPR reported on Senate Democratic leadership’s criticism of the GOP Senate over its record blockade of Judge Merrick Garland:

The Senate Democratic leadership came back Tuesday, thundering at Republicans about their historic refusal to even consider a Supreme Court nominee. On July 20, President Obama's nominee, Judge Merrick Garland, broke the record set 100 years ago for the gap between nomination and confirmation of a U.S. Supreme Court nominee.

As of now, Garland has been waiting, in vain, for more than 170 days, well over the century-old, 125-day record. The prospect is, at best, many months more of waiting. [NPR, 9/6/16]

Senate Democrats Hold Press Conference At Supreme Court Calling For Republicans To Give Garland A Hearing. [Politico, 9/7/16; Twitter.com, 9/7/16]

President Obama Nominated Abid Qureshi To U.S. District Court For D.C. President Obama announced September 6 that he was nominating Abid Qureshi to the U.S. District Court for the District of Columbia. The Huffington Post reported that if confirmed, Qureshi would be the first Muslim judge on the federal bench:

President Barack Obama made history on Tuesday by nominating the first Muslim person to the federal judiciary, Abid Qureshi.

“I am pleased to nominate Mr. Qureshi to serve on the United States District Court bench,” Obama said in a statement. “I am confident he will serve the American people with integrity and a steadfast commitment to justice.”

It’s unlikely Qureshi’s nomination to the U.S. District Court for the District of Columbia will go anywhere. With just months left in Obama’s term, Senate Republicans have all but stopped confirming his judicial picks. [The Huffington Post, 9/6/16]

Republicans Have Presided Over Unprecedented Obstruction Of Judicial Nominations During The Obama Administration

Democrats Did Not  Block The Confirmation Of 10 Federal District Court Judges In September 2008. The number of federal judges Democrats confirmed in the last seven months of Bush’s presidency greatly outnumbered the number of Obama nominees confirmed by Republicans in 2015, which wasn’t a presidential election year. According to the Alliance for Justice, “in 2008 the Democratic Senate confirmed 22 judges in the last seven months of the George W. Bush administration, including 10 district court judges in September. It is telling that these numbers well exceed the 11 confirmed in all of 2015, when the Senate was supposedly operating under ‘regular order.’” [Alliance for Justice, 1/4/16]

The Senate Has A History Of Confirming District And Circuit Court Nominations During Presidential Election Years. Although the number of confirmations vary due to a number of factors including the number of existing vacancies and whether the Senate and the presidency are controlled by the same party, the Senate has a history of confirming district and circuit court nominations during presidential years:

[Alliance for Justice, 1/4/16]

But During The 2016 Presidential Year, Republicans Are Presiding Over Unprecedented Obstruction. Since January 2016, the Republican-controlled Senate has confirmed just one circuit court nomination and eight district court nominations. [United States Courts, accessed 9/7/16]

PolitiFact: Republican Blocking Of Obama Nominees Is “Disproportionate By Historical Standards.” PolitiFact reported in November 2013 that after then-Senate Majority Leader Harry Reid (D-NV) triggered the “nuclear option” -- “changing Senate rules to eliminate a 60-vote supermajority for executive nominations” -- “by our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama's term”:

This matters because some of the nominations resulted in multiple cloture efforts. By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama's term, for a total of 147.

[Sen. Harry] Reid's point is actually a bit stronger using these these revised numbers. Using these figures, blockages under Obama actually accounted for more than half of the total, not less then (sic) half. Either way, it's disproportionate by historical standards.

Indeed, when we presented this finding to Reid's office, they agreed and released an updated version of the graphic. It now reads, “In the history of the United States, there have been 168 filibusters of presidential nominees, 82 filibusters under President Obama, 86 filibusters under all other presidents.”

“Point well taken on the number,” Reid spokesman Adam Jentleson told PolitiFact. “We have actually been careful to specify that 168 is the number of times a nominee was blocked in our materials. The miswording was unintentional. I don't think the point is any less strong when it is worded as 'times' versus 'nominees.'” [PolitiFact, 11/22/13]

Republicans And Democrats Agree: The “Rule” Against Confirming Judicial Nominees In A Presidential Election Years Does Not Exist

Sen. Patrick Leahy (D-VT): Republicans, Including The Majority Leader, Have Repudiated The Existence Of The “Thurmond Rule.” Legislators sometimes cite the so-called “Thurmond Rule,” named after former Senate Judiciary Chair Strom Thurmond (R-SC), to oppose the confirmation of federal judges during election years. But both Senate Majority Leader Mitch McConnell (R-KY) and Senate Judiciary Chairman Chuck Grassley (R-IA) have denied its existence, Sen. Patrick Leahy (D-VT) noted in a 2015 press conference. Leahy added that “in July 2008, the Senate Republican caucus held a hearing solely dedicated to arguing that the Thurmond Rule does not exist.” Leahy applauded these past explanations from Republican Senate leaders, specifically noting that they do not “believe there should be a cut off point for confirming qualified judicial nominees in an election year”:

I hope that in the New Year the Senate will make progress on the judicial nominees pending in the Judiciary Committee as well as on additional nominees that we receive from the President. I was glad to hear the Majority Leader’s remarks this week that he does not believe there should be a cut off point for confirming qualified judicial nominees in an election year. The Majority Leader has been consistent on this view, and I commend him for it. In July 2008, the Senate Republican caucus held a hearing solely dedicated to arguing that the Thurmond Rule does not exist. At that hearing, the senior Senator from Kentucky stated: “I think it’s clear that there is no Thurmond Rule. And I think the facts demonstrate that.” Similarly, the Senator from Iowa, my friend who is now serving as Chairman of the Judiciary Committee, stated at that hearing that the Thurmond Rule was in his view “plain bunk.” He said: “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” That was certainly the case when Democrats were in the majority in the last two years of the George W. Bush administration. I served as Chairman of the Judiciary Committee then, and I can tell you that Senate Democrats confirmed 22 of President Bush’s judicial nominees in the second half of 2008. [U.S. Sen. Patrick Leahy of Vermont, 12/17/15]

Senate Majority Leader Mitch McConnell (R-KY) In December 2015: “There Isn’t Any Particular Official Or Unofficial Cutoff Date” To Stop Considering Judicial Nominations. [The Huffington Post, 12/15/15]

Senate Judiciary Chairman Chuck Grassley (R-IA): “The Reality Is That The Senate Has Never Stopped Confirming Judicial Nominees During The Last Few Months Of A President’s Term.” During a 2008 “forum to discuss the importance of removing politics from the judicial confirmation process,” Sen. Chuck Grassley (R-IA) described the “Thurmond Rule” as “plain bunk”:

SEN. CHUCK GRASSLEY:  We’re hearing testimony today about the so-called “Thurmond Rule” and that the Congressional Research Service has researched  it. We really need to set the record straight on this, because Democrats are using the so-called “Thurmond Rule” to justify grinding the judicial nomination  process to a halt. Well, I’ve been on the Judiciary Committee now for 25 years or more, and I’m sorry to say that claims by my fellow Democrats that this slowdown of judicial nominees is justified, and that we are now past the time of the “Thurmond Rule,” are just plain bunk. The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term. [C-SPAN 3, 7/14/08]

Sen. Arlen Specter (R-PA): “Nothing Proves The Non-Existence Of The ‘Thurmond Rule’ More Decisively Than What Happened With Stephen Breyer.” While speaking out against the “Thurmond Rule” during the last months of President George W. Bush’s presidency, Sen. Arlen Specter (R-PA) criticized Republicans and Democrats for invoking the supposed rule and said Stephen Breyer’s confirmation to the U.S. Court of Appeals for the First Circuit is evidence of “the non-existence of the ‘Thurmond Rule.” Thurmond could have raised an objection to Breyer’s nomination -- or Senate Republicans could have filibustered it in an attempt to nominate a more conservative judge -- but instead debate was ended and Breyer went on to be confirmed by an 80-10 vote of the Senate:  

SEN. ARLEN SPECTER: The best example of what the Thurmond rule meant was illustrated by the nomination of Stephen Breyer for the First Circuit. And this is what happened with now-Justice Breyer. The nomination did not go [before]  the Senate until November 13 after President-Elect Reagan had been elected. The Judiciary Committee had a hearing on November 17, four days later, reported out on December 1, and was confirmed on December 9, just one week before the Senate adjourned. My red light just went on, so I will not state the many, many judges who have been confirmed in September and beyond. But nothing proves the non-existence of the Thurmond rule more decisively than what happened with Stephen Breyer. [C-SPAN 3, 7/14/08; Congressional Record, 2/26/2003, Congressional Research Service, 8/13/08]

McConnell Responded To Specter: “I Think It’s Clear That There Is No ‘Thurmond Rule,’ And I Think The Facts Demonstrate That, And I Thank You For Pointing That Out.” [C-SPAN 3, 7/14/08]

Current Senate Judiciary Committee Member John Cornyn (R-TX): “The ‘Thurmond Rule’ Never Existed.” After denying the existence of the “Thurmond Rule,” Senate Judiciary Committee member John Cornyn (R-TX) called for an end to partisanship in the judicial confirmation process during the last months of the George W. Bush administration, saying, “Now is the perfect time because of course we are in a presidential election year and no one yet knows who the next president will be. What a unique opportunity to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications and not on the basis of ancient political squabbles.” [C-SPAN 3, 7/14/08]

Sen. Orrin Hatch (R-UT) Cited Judicial Confirmations During Presidential Election Years When Thurmond Chaired The Judiciary Committee. Sen. Orrin Hatch (R-UT) debunked the “old canard” of the “Thurmond Rule” during a 2004 Senate session by noting that judicial nominees were actually confirmed late in presidential election years when Thurmond chaired the Judiciary Committee:

SEN. ORRIN HATCH: Now, let me take a minute to dispense with the old canard that judges aren't confirmed late in an election year. When Senator Thurmond chaired this committee, during a presidential election year, the Senate confirmed six circuit judges after August 1 -- one in August and five in October. In addition, 12 district judges were confirmed in September and October of that year. So I will follow that “Thurmond Rule” and continue to bring the president's nominees to the committee for action and to the Senate for consideration. [Congressional Record, 10/8/04]

Specter Praised  Election Year Confirmations: “We Ought To Try To Move, I Suggest, Away From Positions Where We Articulate A View When It Suits Our Purpose And Then Articulate A Different View Later.” Specter listed some of the “many” confirmations of district and circuit court judges during election years while speaking on the Senate floor in 2008. He added that “there is no Thurmond rule for Democrats when Republicans are in control and there is a Democratic president, and there is no Thurmond rule when the situation is reversed”:

SEN. ARLEN SPECTER: The evidence shows there are many confirmations late in the presidential term. I cite only a few. There was an additional circuit nominee confirmed in September of 1980. After September 1, 1984, five circuit court and 12 district court judges were confirmed. After September 1, 1988, five circuit court and nine district judges were confirmed. After September 1, 1992, three circuit court and nine district court judges were confirmed.

[...]

We ought to try to move, I suggest, away from positions where we articulate a view when it suits our purpose and then articulate a different view later. We ought to try to come to a point in this body where we understand reciprocity and understand that the rules ought to apply both ways. There is no Thurmond rule for Democrats when Republicans are in control and there is a Democratic president, and there is no Thurmond rule when the situation is reversed. [Congressional Record, 7/17/08]

Nonpartisan Sources Confirm There Is No “Thurmond Rule”

American Bar Association: “The ‘Thurmond Rule’ Is Neither A Rule Nor A Clearly Defined Event.” Warning of “the dangerously high vacancy rate that is adversely affecting our federal judiciary,” a 2012 letter from the American Bar Association (ABA) explained that “there has been no consistently observed date at which [the Senate has stopped voting on judicial nominees] during the presidential election years from 1980 to 2008. With regard to the past three election years, the last circuit court nominees were confirmed in June during 2004 and 2008 and in July during 2000”:

As you know, the “Thurmond Rule” is neither a rule nor a clearly defined event. While the ABA takes no position on what invocation of the “Thurmond Rule” actually means or whether it represents wise policy, recent news stories have cast it as a precedent under which the Senate, after a specified date in a presidential election year, ceases to vote on nominees to the federal circuit courts of appeals. We note that there has been no consistently observed date at which this has occurred during the presidential election years from 1980 to 2008. With regard to the past three election years, the last circuit court nominees were confirmed in June during 2004 and 2008 and in July during 2000. In deference to these historical cut-off dates and because of our conviction that the Senate has a continuing constitutional duty to act with due diligence to reduce the dangerously high vacancy rate that is adversely affecting our federal judiciary, we exhort you to schedule votes on these three outstanding circuit court nominees this month. [American Bar Association, 6/20/12]

Congressional Research Service: “There Is No Written Senate Or Senate Judiciary Committee Rule Concerning Judicial Nominations In A Presidential Election Year.” From a 2008 report of the nonpartisan Congressional Research Service (CRS):

In addressing the above issue, it is important to keep in mind that there is no written Senate or Senate Judiciary Committee rule concerning judicial nominations in a presidential election year. No bipartisan agreement has ever been reached, or any Judiciary Committee or Senate vote taken, regarding a Thurmond rule or the practices for which it is said to stand. [Congressional Research Service, 8/13/08]

Republican Obstruction Of Obama’s Judicial Nominees Is Exacerbating A Vacancy Crisis In The Federal Judiciary

American Constitution Society: Invoking The “Thurmond Myth” Could Exacerbate Judicial Vacancy Crisis. In 2012, the American Constitution Society (ACS) noted that the “Thurmond Rule” is “the urban legend of judicial nominations” and, citing high levels of judicial vacancies, explained, “Invoking the Thurmond Myth now would be not only premature but devastating to the federal judiciary, which is already operating under capacity”:

[American Constitution Society, accessed 9/7/16]

There Are Currently 32 “Judicial Emergencies” Due To Vacancies In District And Circuit Courts. “Judicial emergencies” are declared on the basis of federal courts' respective caseloads and the length of time vacant positions have remained unfilled. [United States Courts, accessed 9/7/16]

Republican Obstructionism Is Responsible For The High Rate Of “Judicial Emergencies.” By the end of 2015, “the number of judicial emergencies has nearly tripled,” according to a report by the Center for American Progress. With just nine confirmations of circuit or district court judges in 2016, the Republican-led Senate continues to advance “the worst obstruction in more than half a century”:

In 2015, the U.S. Senate has confirmed just 11 federal judges to the bench, and the number of judicial emergencies has nearly tripled. As the graphic below shows, this is the worst obstruction of judicial nominations in more than half a century. As a result, millions of Americans are being denied access to justice.

[Center for American Progress, 2/23/16]