The Leahy Rule
By AndrewHyman Posted in Analysis and Predictions — Comments (5) / Email this page » / Leave a comment »
The so-called "Thurmond Rule" has been described online by Ed Whelan, and Curt Levey, and also by the scribes over at Wikipedia. According to this alleged "Thurmond Rule," the confirmation process is supposed to stop many months before the end of a presidential term. Senator Leahy is now planning to use this purported "Thurmond Rule" to stall circuit court confirmation proceedings that are already way behind the historical average (see March 20 article in CQ Today). In 2000, though, Leahy said something very different:
We cannot afford to follow the Thurmond Rule and stop acting on these nominees now in anticipation of the presidential election in November.
Let's call that the Leahy Rule. Incidentally, Sen. Specter has explained that Thurmond never really said what Leahy attributes to him (see an excerpt from Specter's statement below the fold).
I would also like to address what has been called the "Thurmond Rule." Some have suggested that this so-called rule holds that the Senate should dramatically curtail confirmations after the spring of a presidential election year. Review of the historical record suggests that this rule is more myth than reality.
It does not appear that Senator Thurmond, for whom the purported rule is named, ever publicly asserted that nominations should be delayed due to an impending presidential election. The only comment that could be so construed was made after the Committee approved ten nominees at a September 17, 1980 markup. He stated, "[L]et me make the point [that] the Minority has tried to be more than fair in considering all of the nominees that have appeared before this Committee. I would remind [the Committee] it is just about six weeks before the election, and I want to say that for a year and a half before the last election, there was no action taken on judges when we had a Republican President." However, because Senator Thurmond used this as a point of contrast, the natural implication seems to be that he considered blocking nominations in the lead up to an election unfair.
The fact of the matter is that the Senate has regularly confirmed judges in presidential election years. In the election year of 1980, when it is asserted Senator Thurmond inaugurated the so-called rule, the Senate confirmed ten Circuit Court nominees and 53 District Court nominees. Several of the Circuit Court nominations were high profile nominees with well-known credentials. Many of these nominees were confirmed relatively late in the year.
Between June 1 and September 1, 1980, the Senate confirmed four Circuit Court nominees and 15 District Court nominees, including then-ACLU General Counsel Ruth Bader Ginsburg, who was confirmed June 18, 1980.
After September 1, 1980, the Senate confirmed two more Circuit Court nominees and eleven District Court nominees. The first Circuit Court nominee, Stephen Reinhardt of the Ninth Circuit, who is now thought to be one of nation's most liberal jurists, was confirmed on September 11, 1980.
More remarkable is the second Circuit Court nominee, that of Stephen Breyer to the First Circuit. Justice Breyer was then Senator Kennedy's Chief Counsel. He was nominated by President Carter on November 13, 1980, after Carter had lost the election to Ronald Reagan. The Senate, which was also about to switch party control, held a swift confirmation hearing and voted to confirm Breyer on December 9, 1980.
The presidential election year of 1980 was not an aberration, the pattern continued in subsequent election years. In 1988, President Reagan's last year in office, the Senate confirmed seven Circuit Court nominees and 33 District Court nominees. In 1992, President George H.W. Bush's last year in office, the Senate confirmed eleven Circuit Court nominees and 53 District Court nominees. In 2000, President Clinton's last year in office, the Senate confirmed eight Circuit Court nominees and 31 District Court nominees.
Furthermore, many of these presidential election year confirmations occurred late in the year. Since 1980, 110 judges were confirmed after July 1st of a presidential election year, 17 of those were confirmed to Circuit Courts. In the same period, 63 judges were confirmed after September 1st of presidential elections years, twelve of those to Circuit Courts. In short, there does not appear to be any historical basis for the so-called "Thurmond Rule." The Senate has confirmed numerous nominees during presidential election years, and I expect that with Senator Leahy and I working together, we will do so again next year.
It hasn't happened yet.
Thurmond Myth v. Leahy Rule
by 7th Heaven
Thank you Andrew for the new thread. Very interesting articles are cited above.
Zero confirmations so far this year needs further scrutiny by CT readers.
BK's astute observation reveals 9 rules implemented by Leahy. Here are a few more.
--In the 4th Circuit, nominees approved by both home senators, if Republican, can be ignored permanently.
--In the 5th Circuit, the SJC shall take judical notice that all white male nominees from Mississippi are presumed racist and can be stalled indefinitely.
--In the 6th Circuit, Senator Levin actually owns all COA seats from Michigan much like seats on an options or mercantile exchange. One is reserved for his relative, but both vacant seats are blocked because the relative can't decided which seat she wants until she is eligible to take a permanent seat again. District Court seats for the ED of MI are unavailable for nomination while Bush is in office. If a Dem is elected, they become immdiately open.
In the 9th Circuit, COA seats can only be filled by well established moderates if a Repub. is President. Only half the Bush nominees [7] will be approved as compared to the Clinton nominees [14]. Senator Leahy wants to maintain a "balance" on the 9th Circuit. This is code and means 2-1 weighting in favor of the liberals.
In the DC Circuit, all agree that the 12th Seat is not needed. During the Bush years, the 11th seat will be frozen as well until a Dem. is elected president. The 11th seat will not be filled in 2008, but the 12th seat will be shipped off to the 9th Circuit in 2009 anyway. I believe the legislation to do so has already been approved and signed. This is Leahy's greatest dirty little secret.
Judicial Emergencies will not be recognized or acknowledged in any circuit. The fact that the 4th Circuit has 5 current vacancies is merely an opportunity for the Dems to "rebalance" in 2009.
During the first term of President Bush, there is no need for the creation of any new judicial positions in any COA or DC anywhere in the country. The same is true for the second term. By slowwalking confirmations during 2007 and especially during 2008, Senator Leahy can now see on the horizon the need for new judgeships in 2009. According to Leahy, his vision on this topic will crystalize in November.
Now you know some of the rules by which Senator Leahy operates. Like a lunar eclipse, Electile Amnesia has been known to strike Senator Leahy near the end of even years for some odd reason.
This series of events would be quite funny, if it were not true. The problem remains that it is all true. I can't tell you the utter contempt I have for the man. More importantly, what can we all do to remedy the situation and especially the 11th seat on the DC Circuit?
Leahy is completely out of control...
by text97
It is such an outrage that Leahy does whatever he wants, whenever he wants. And what do we have to balance him with? Arlen Specter. A man who goes out of his way to get along with Leahy. Further, this is the guy who promised to fight for Bush's nominees in early 2005, and then refused to push any nominees thru after the '06 elections, but before the Democrats took control. That wouldn't "be fair".
Unreal. I hope after Specter leaves, we get the most aggressive, partisan BULLDOG possible to run that committee.
I want a Senator who had the attitude (but not the scandal!) of my former Governor: "I'm a f*cking steamroller!"
Specter--He's is not Snarlin' Arlen Now
by 7th Heaven
As long as Specter gets his COA nominee, Gene Pratter, through the process and on the third circuit, he will do very little to help the others. So far this year, I think we have had just one hearing for the COA nominee and zero business meetings to vote Haynes out of committee. If CT doesn't do something during the next three months, the Leahy Rule [the mythical Thurman Rule plus 6 months tacked on the front of it] will silently be enacted before our very eyes. Don't wait until July for the hue and cry to bubble up from your spleen.
and making this a signature issue during his "rally the conservatives" time.
Maybe it'll just be Leahy 1, Leahy 2, Leahy 3, etc.
- The Keisler seat on the DC Circuit must remain open indefinitely.
- There must be pro forma sessions during every
recessday in which no other business is scheduled to prevent recess appointments.- Presidents can only choose nominees from lists chosen by that state's senators.
- Secret holds are acceptable and must remain secret.
- It's fair to hold up all judicial nominations if there is one administrative nominee you don't like.
- The President and his party are to blame for any alleged slow pace of nominations.
- Use statistics in any way needed to prove that you moved at a faster pace than the other party did.
- Invoke rules you vehemently argued against previously.
- Automatically add a week to the clock for every judicial nominee.
and so on - there must be dozens of them