May 22, 2012 – 11:36 p.m.

If Judicial Confirmations Slow This Election Year, It’s the ‘Leahy Rule’

Conservative legal groups are trying to rebrand the Senate’s decades-old “Thurmond rule” on judicial confirmations as the “Leahy rule,” accusing Judiciary Chairman Patrick J. Leahy of applying it selectively.

The rule — actually a custom — holds that confirmation of judicial nominees slows and eventually grinds to a halt during presidential election years because senators not of the incumbent president’s party do not want to confirm judges during what they hope will be the final months of an administration.

The rule carries the name of former Judiciary Chairman Strom Thurmond, R-S.C., although there are different accounts of how the late senator earned credit for the idea of sitting on nominations when Election Day approaches. Most point to his successful opposition — while ranking on the Judiciary panel — to Democratic President Lyndon B. Johnson’s nomination of Abe Fortas as chief justice in the summer of 1968 and Thurmond’s insistence that consideration of a new nominee await the outcome of that year’s presidential race.

But the Congressional Research Service has traced the “Thurmond rule” label to the senator’s comment at the July 1980 Republican National Convention that Senate Republicans would be asked to block action on all nominations by Democratic President Jimmy Carter until after that fall’s election.

Conservative law groups are now referring to the customary freeze on nominations as the “Leahy rule” to draw attention to what they see as the Vermont Democrat’s shifting position depending on which party occupies the White House.

Democrats and Republicans have been blaming one another for the slow pace of judicial confirmations during President Obama’s presidency, and are now haggling over when — or whether — the Thurmond (or Leahy) rule will be invoked by Republicans as the November elections approach.

Leahy “goes back and forth between invoking the rule and saying there’s no such thing, and it’s completely dependent on who is in the White House at the time,” said Carrie Severino, chief counsel and policy director at the Judicial Crisis Network. Severino made a presentation titled “The Leahy Rule and Obama’s Challenge to the Courts” at last month’s annual policy conference of the Republican National Lawyers Association.

Severino notes that both Leahy and Senate Majority Leader Harry Reid, D-Nev., repeatedly called the Thurmond rule a “myth” during the presidency of Democrat Bill Clinton. But Leahy invoked the rule in a March 2008 letter urging Republican President George W. Bush to work with senators from both parties to win confirmation of judges “before time runs out on your presidency, and the Thurmond rule precludes additional confirmations.”

Liberals — who would like to see the custom abandoned with a Democratic president currently making nominations — say the Thurmond rule itself is more of an excuse than a reality.

The Alliance for Justice, a liberal judicial advocacy group, offers a fact sheet that the group says shows “confirmations of district and circuit court nominees have continued well into presidential election years under both Democratic and Republican presidents” over the last 30 years. The group’s fact sheet notes that 10 of Bush’s district court nominees were confirmed in September 2008.

“Not only is it ridiculous to try to rebrand a piece of folk wisdom, it’s simply wrong to believe there was much substance to the ‘Thurmond rule’ in the first place,” Zach Ragbourn, an Alliance for Justice spokesman, wrote in an email.