Gavel Grab

Analyst on Thurmond Rule: Not Gridlock, but ‘Destruction’

Legal analyst Andrew Cohen has asked tough questions before when partisan Senate politics stalled or blocked qualified judicial nominees. Now Cohen takes his longtime concern, applies it to the so-called “Thurmond Rule” and simply loses any shred of patience with the Senate, pleading, “This isn’t gridlock. This is destruction.”

Senate Republicans recently invoked the Senate tradition that has the Senate cease voting on high-level judicial nominees during the second half of a presidential election year (see Gavel Grab). In addition, Senate Republican Leader Mitch McConnell said confirmation votes on district court nominees would be blocked after September.

In an Atlantic online essay, Cohen points to President Obama’s nomination of William Kayatta of Maine, for the First U.S. Circuit Court of Appeals, as his Exhibit A in an indictment of the “Thurmond Rule.” Kayatta is a “slam-dunk” judicial candidate: He has broad respect in his home state, the support of his two home-state GOP senators, and his nomination sailed through the Senate Judiciary Committee on an easy voice vote. Then it encountered the procedural “rule” that really isn’t one:

“In theory, the Thurmond Rule is something official Washington defends as the price of divided government. In reality, it’s another outrageous example of how the Senate has re-written the Constitution by filibuster. In practice, in the Kayatta case and many more, the Thurmond rule is the antithesis of good governance. Your Senate today perpetuates a frivolous rule which, for the most cynical political reasons, blocks qualified people from serving their nation. It’s not misfeasance. It’s malfeasance.”

At a time of 76 judicial vacancies around the nation, this practice “is unacceptable at every level,” Cohen adds. He asks, “Can you imagine the uproar if the Senate ever used its filibuster power to block the deployment of troops already endorsed by the Armed Services Committee? Now please tell me the material difference here. Surely, the judiciary needs judges as much as the army needs soldiers.”

But it’s not just about the Senate, it’s about the people served by our courts, Cohen goes on to say. “The nation’s litigants in federal court, burdened by judicial vacancies, already are waiting long enough to have their corporate disputes decided. This isn’t gridlock. This is destruction.”

In May, Justice at Stake and 28 other national organizations called for prompt Senate votes on judicial nominations. The groups’ statement said leaders of both political parties must end a chronic gridlock that is thwarting the delivery of justice (see Gavel Grab).

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