Yesterday, Senate Republicans announced that they will no longer consent to confirmation votes for any appellate court nominees until after the election, invoking the so-called Thurmond Rule. While they claim they are acting consistently with previous practice in presidential election years, the facts show otherwise.
As Judiciary Committee chairman Patrick Leahy said today:
This shutdown is consistent with what the partisan Senate Republican leadership did in 1996 and again at the end of President Clinton’s presidency, and can be contrasted with how Democrats acted in 1992, 2004 and 2008.
The Republicans’ announcement directly affects four circuit court nominees who have been cleared by the Senate Judiciary Committee and are waiting for a yes-or-no vote. However, there would not be this many awaiting votes but for Republican obstruction: They have forcefully been preventing the Senate from scheduling a vote. Those who created the current backlog of lower court nominees now seek to profit from their obstruction by invoking the "Thurmond Rule."
This is a sharp turnaround from when George W. Bush was president and Republicans controlled the Senate. At this point in his presidency, Bush’s confirmed circuit court nominees got a floor vote 31 days after committee approval. But now, by withholding their consent to floor votes, Senate Republicans have forced President Obama’s confirmed circuit court nominees to wait more than four times as long. They have forced a similar fourfold delay on district court nominees, as well. As a result, they have created a needlessly large backlog of 17 pending nominations. And while they are now trying to appear cooperative by allowing one or two votes a week (generally in order of how long a nominee has been waiting for a floor vote), the past delays and obstruction have brought a number of highly qualified nominees to this artificial deadline.
Qualified nominees to the Third Circuit (Patty Shwartz) and Federal Circuit (Richard Taranto) have been languishing since March, and a First Circuit nominee (William Kayatta) has been denied a floor vote since April. Under precedent from the Bush era, all three should have been confirmed long ago.
The fourth currently pending circuit court nominee – Robert Bacharach for the Tenth Circuit – was approved by the Judiciary Committee by voice vote on June 3. Yet in the last presidential election year, the committee approved two of President Bush’s circuit court nominees even later than that (June 12, 2008) and confirmed them two weeks later (June 24).
Shwartz, Taranto, Kayatta, and Bacharach are all highly qualified nominees. In fact, all four received the highest possible evaluation from the American Bar Association, with unanimous panels finding them well qualified. Three cleared the Judiciary Committee with overwhelming bipartisan support. Two come from states with Republican home state senators (Maine and Oklahoma), and have received the strong support of those elected officials. In fact, Sen. Tom Coburn has said it would be "stupid" to deny Robert Bacharach a vote.
But it’s not "stupid." Republicans know exactly what they are doing to the American court system and the millions who depend on it for justice. They just don’t care.
UPDATE: Ian Millhiser at Think Progress has written a good piece on the so-called Thurmond Rule. He notes the numerous circuit court judges confirmed in presidential election years between this day and Election Day for Presidents Carter through George W. Bush. He writes:
[T]he supposed ban on late term confirmations does not exist, and it has never existed except arguably during the Clinton presidency, when then-Judiciary Committee Chair Orrin Hatch (R-UT) routinely played Calvinball with the Senate’s rules in order to keep President Clinton’s judges from being confirmed