The Dems invoked the ‘Thurmond Rule’ -- where was The Times?

The Times’ July 12 editorial, “Reject the ‘Thurmond Rule,’” omitted key facts. It ignored the most active proponent of the rule: the Democratic chairman of the Senate Judiciary Committee. But since The Times’ editorial board writes about this issue only during Democratic presidential administrations -- while ignoring it during Republican years -- this should not have come as a surprise.

The rule refers to a Senate practice of slowing down judicial confirmations in the months leading up to a presidential election so the American people can decide who they want making these important lifetime appointments. The nonpartisan Congressional Research Service traces the practice to events supposedly occurring in the run-up to the 1980 election, not in 1968, as The Times claims. The CRS is clear that the biggest proponent of the rule was not the late Sen. Strom Thurmond (R-S.C.), but rather the current Democratic chairman of the Judiciary Committee. And even Chairman Patrick Leahy (D-Vt.) has never claimed, as The Times did, that the Leahy-Thurmond Rule -- as in fairness it should be called -- was begun by Thurmond after Abe Fortas’ nomination as chief justice of the Supreme Court.

According to the Senate historian as well as a 1990 article in The Times, the bipartisan opposition to the Fortas nomination centered on concerns about cronyism. Fortas had long been regarded as then-President Johnson’s “fixer.” As a sitting justice he had counseled the president on policy, pressured senators on political matters, divulged to the White House confidential court deliberations and had received private payments that amounted to 40% of his salary. Asked about these matters, Fortas was less than forthright with the Judiciary Committee. Not surprisingly, senators from both parties -- including 19 Democrats -- opposed ending debate on that nomination. (The leader of the opposition to Fortas was Republican Sen. Robert Griffin of Michigan, not Thurmond.)

Now, it is obvious that Senate Democrats will not want the rule they’ve supported in the past to be applied to the judicial nominations of their own president. It may be less obvious to some that The Times apparently shares their wish. The Times was silent on the Leahy-Thurmond Rule when Senate Democrats invoked it in 2004 and again in 2008 during a Republican administration, but complains now, even though the situation on our circuit courts is better today in almost every respect than it was in either of those years.


The Times also fails to note that the Senate is treating President Obama’s judicial nominees much better than it treated President Bush’s. Although the Senate has had to devote time and resources to process two Supreme Court nominations during the Obama administration, it has nevertheless already confirmed 152 of its lower court nominations. Under comparable circumstances, the Senate confirmed only 119 of Bush’s lower court nominations. Indeed, although The Times barely acknowledges it, the real problem lies with the administration: The White House has failed to submit nominees for more than half of the current judicial vacancies.

We are confident Senate Republicans will continue to work on judicial nominations in good faith. And we are equally confident that The Times will again stand silent when our Democratic colleagues invariably employ the Leahy-Thurmond Rule when there is a Republican in the White House.


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Sen. Mitch McConnell (R-Ky.) is the Senate minority leader. Sen. Charles E. Grassley (R-Iowa) is the ranking Republican on the Senate Judiciary Committee.