By Kyle Barry

“I think it’s clear that there is no Thurmond Rule” – Republican Senator Mitch McConnell

“There is no Thurmond Rule” – Republican Senator Orrin Hatch

With only 11 judges confirmed, 2015 was the worst year for judicial confirmations since 1960. Thirty-one nominees were left pending, including 14 noncontroversial nominees ready for votes on the Senate floor. With this abysmal record, it’s clear that the Senate’s unapologetic Republican majority will persist in its strategy of obstruct and delay, trying to keep vacancies open and limit the president’s influence on the judiciary. The excuses have started already, with Republican leadership alluding to a supposed Senate custom, known as the “Thurmond Rule,” of cutting off judicial confirmations during a presidential election year. The Thurmond Rule is complete nonsense, but before explaining why, it’s worth noting the destructive results of last year’s historic obstruction and where things stand today.

The lack of confirmations in 2015 was an enormous step backward. At the start of 2015, there were only 43 vacancies and 12 judicial emergencies, numbers that have since increased by 63 percent and 166 percent, respectively. On January 1 vacancies climbed back to 70 for the first time since May 2014, and by month’s end four more seats will be empty. Fourteen states now have multiple vacancies; nine states have three or more; and six states—Texas (9), Pennsylvania (6), Alabama (5), Florida (4), New Jersey (4), and New York (4)—have at least four vacancies. In Texas, the longstanding epicenter of the vacancy crisis, eight of the nine vacancies are judicial emergencies; in New Jersey, that’s true of all four. In these corners of the country, justice is on hold until the Senate resumes its basic constitutional function of confirming judges.

In 2016, the good news is that, before the Senate adjourned last year, Majority Leader Mitch McConnell agreed to hold confirmation votes for five judicial nominees by Presidents’ Day recess, starting on January 11 with Third Circuit nominee L. Felipe Restrepo. Only against the Senate’s recent record could such a modest agreement represent progress, but it does mean that by mid-February in 2016 we’ll have nearly half the total confirmations we had all of last year. It also means, assuming all five nominees are confirmed, that four judicial emergencies will be filled, including one on the Third Circuit.

The bad news is that Republicans will inevitably rely on these confirmations when, soon after, they invoke the so-called “Thurmond Rule” to shutdown confirmations entirely. First they’ll point to this early-year, five-judge agreement as a magnanimous gesture that warrants unequivocal praise. Then they’ll say, sorry, no more; it would be inappropriate to move more judges because of the longstanding Thurmond Rule. They’ll say that the rule dates back to 1968, when Senator Strom Thurmond objected to President Lyndon Johnson elevating Abe Fortas to Chief Justice during an election year. Since then, they’ll say, the Senate has applied the Thurmond Rule to block confirmation of all judicial nominees in the latter months of a presidential election year. Judiciary Committee Chairman Chuck Grassley has already primed the pump, saying that the rule goes into effect “next summer.” Media reports have reinforced the concept, restating the rule in formal terms. According to one Politico report, “[t]he Thurmond Rule . . . holds that the Senate shuts off the confirmation valve of lifetime judicial appointments in July of an election year.”

Do not believe it.

The Thurmond Rule is not real. It is a myth, a figment of the partisan imagination invoked to give an air of legitimacy to a strategy—blocking even the most noncontroversial of judicial nominees—that is pure obstruction. Most obviously, there is no Thurmond Rule in the formal sense—no law, senate rule, or bipartisan agreement renewed each congress. Its existence also is belied by historical practice. Going back to Reagan, the Senate has confirmed an average of 16 judges in the second half of presidential election years, and in 2008 the Democratic Senate confirmed 22 judges in the last seven months of the George W. Bush administration, including 10 district court judges in September. It is telling that these numbers well exceed the 11 confirmed in all of 2015, when the Senate was supposedly operating under “regular order.”

Even the final years of two-term presidencies have been relatively productive; on average, the respective eighth year for Reagan, Clinton, and George W. Bush (each of whom faced an opposition senate) yielded about 10 percent of their total judicial appointments. Bush was the lowest of the three, with 28 judges confirmed in 2008 for 8.6 percent of his 324 total district and circuit court confirmations. It would take 35 confirmations this year for President Obama to appoint 10 percent of his total judges in 2016, and about 30 confirmations to hit Bush’s rate of 8.6 percent.

The above chart also shows that election-year confirmations have not been limited to district court judges. A couple of noteworthy examples within the data: In 2008, Bush nominated Fourth Circuit Judge Steven Agee in March, Judiciary Committee Chairman Patrick Leahy held Agee’s hearing on May 1, and the full Senate confirmed Agee on May 20. In 1980, President Carter nominated Stephen Breyer to the First Circuit in November, and the Senate confirmed Breyer in December on a vote of 80 to 10.

All this historical data was perhaps best summed up by Chuck Grassley himself, who in 2008 spoke at a hearing dedicated to arguing that the Thurmond Rule does not exist: “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term,” and the Thurmond Rule, Grassley said, is “plain bunk.”

Good words for a Judiciary Committee Chairman to live by, and those to which Grassley should be held in 2016.

Kyle Barry is the Director of Justice Programs at Alliance for Justice, a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society.   This post originally appeared on the Alliance for Justice Blog.

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