How the perversion of an old parliamentary principle would deny President Obama his nominee.
Given that Supreme Court seats are meant to be filled “for life,” the death of a Supreme Court justice should not ordinarily send the federal government spinning into a Constitutional crisis. The Constitution is clear on this matter—it is the joint power of President and the Senate to fill that vacancy. But while the President and Senate have the power, do they also have the responsibility to fill the vacancy? While the Constitution explicitly gives the Senate the power to give “advice and consent,” it contains no mandate that Congress actually do anything. Much to the frustration of Presidents throughout history, the Senate has been constantly inventing new uses for its instruments of obstruction—namely, its own rules.
Case in point: while President Obama has promised to fill the vacancy of the late-Justice Antonin Scalia, Senator Mitch McConnell has vowed just the opposite. But when Republicans argue against confirming an Obama appointee, they are not planning on simply voting against a particular nominee; they are refusing to hold a vote at all.
Sunday, on NBC’s Meet the Press, presidential candidate and Senator Marco Rubio insisted, “Well, we will go through the motions, but not while Barack Obama’s in the White House.” Using the Majority Leader’s power to set the calendar, President Obama’s appointee will not face a fight on the Senate floor; he or she will not even get a vote on the Senate floor. By refusing even to reject a nominee outright, Senate Republicans will have boxed the President out of the nomination process entirely.
What is the Thurmond Rule?
Senators Rubio and McConnell are drawing from a decades-old convention known as the Thurmond Rule — in reality more of a principle or precedent than a binding Senate rule — dating back to segregationist Senator Strom Thurmond’s 1968 filibuster of Justice Abe Fortas’ nomination to become Chief Justice.
Pulled out at the convenience of either party, the Thurmond Rule has been hurled at the party in power at the end of each Presidential term, and each party’s perception of it has shifted according to circumstance. For example, Senior Republican Senate aides argued in 2004 that the rule was really the “general understanding that there would be no floor votes on controversial nominees, rather than an understanding that there would be no action on nominees at all,” writes The Hill.
While Strom Thurmond stalled Fortas’ nomination for six months, some have argued that the rule extends to the entire year, while former Judiciary Chairman Orrin Hatch (R-Utah) pointed out in 2004, “There have been lots of cases where judges have gone through after July.” And while Harry Reid agrees that the “consensus” seems to be an end to the business of nominating toward the end of the summer, Rubio has been fighting to push the timeline back, claiming that the President cannot expect a hearing for his nominee in the “last few months” in office, despite the fact that President Obama has eleven months left in his term.
Rubio asserts the Court “can function just fine” with eight members, but a vacancy of at least 340 days (the amount of time Obama has left in his term) could set records. The last time the Supreme Court has been stuck with eight members was in 1969 when the very same Justice Fortas resigned; the Court then had a vacancy for 391 days. Even if the next president nominated and confirmed a justice within just two months, this vacancy would break records. While the 1969 vacancy set records because the Senate took votes on and rejected two of Nixon’s nominees, this vacancy would set records because the Senate refused to vote at all.
The invocation of the Thurmond rule today would be unusual in another respect. When Thurmond blocked Fortas’ 1968 nomination, Fortas was facing serious questions about ethics violations. In many circles, Fortas’ elevation was considered too “controversial.” This time, however, Republicans aren’t claiming that the President’s nominee is too controversial (there isn’t one), but that the President’s power to nominate anyone at all is itself controversial.
This interpretation may particularly irk Democrats who remember breezy election-year confirmation process for Reagan nominee Anthony Kennedy in 1988. He sailed through his confirmation with vote of 97-0 and won the vote of every single Democrat. Republicans may point out that Kennedy was actually nominated in 1987 and then only after Democrats soundly rejected the nomination of Robert Bork. Yet President Reagan successfully appointed a Supreme Court justice in the last year of his presidency by putting forward a palatable choice in an election year; Republicans want to deny this president the ability to put forward any nominee at all— even a potentially “palatable” one. That is unprecedented.
The Tools of Armchair Obstructionism
Presidents face new obstacles in this era of passive obstructionism. When Thurmond blocked Fortas’ nomination, he filibustered for four days, back when filibusters actually required speaking. Today, a filibustering Senator need not open his mouth; instead, he simply files a motion.
With no real costs and real partisan gains, it is not surprising that Senators are wielding their tools of obstruction more often and at every level of government. For instance, Presidents have found themselves increasingly hamstrung by lower-court appointments, too, with no authority to spur action. In 2004, a frustrated Bush team contemplated forcing its nominees through confirmation proceedings by requiring a vote within 180 days of a nomination and changing Senate rules. President Obama contemplated a similar rule. They were both powerless to do so.
Even the majority party can be stymied by Senate rules. In 2013, in response to an effective stoppage on judicial nominations, then Majority-Leader Harry Reid invoked the so-called “nuclear option,” forcing through a change in Senate rules that allowed a simple majority to confirm presidential judicial and executive appointees (it did not apply to the Supreme Court). Yet, even when the Democrats controlled the Senate and had invoked the nuclear option, Republicans still found ways to gum up the judicial nomination process.
For one, Republicans would refuse to give unanimous consent on the floor, a parliamentary procedure that allows a floor vote to commence more quickly. While then-Senate Majority Leader Reid could still schedule a vote on the Senate calendar, the procedure can add several more days to a confirmation.
On the other hand, Republicans so successfully strangled the supply of nominees through a technique known as “blue slipping” (where the home state Senator whose federal court vacancy is to be filled refuses to turn in the blue piece of paper required to begin confirmation proceedings) that the Senate actually ran out of judges to confirm.
For his part, Senate Judiciary Committee Chairman Chuck Grassley has slowed the pipeline of nominees by holding Judiciary Committee hearings only every other week.
Senators have always played politics with the Court under the guise of a Constitutional duty to inform the confirmation process. Yet, when Senators so blatantly obstruct the process, is it an exercise of the Senate’s responsibility to “advise and consent,” or an abdication of it?
Unsurprisingly, answers depend on which side a particular Senator finds himself. The majority party of today is tomorrow’s minority party, however, and that fact may the Senate’s only saving grace. The one check on the obstructionist tactics of the confirmation system is the precedent setting value of the tactics used to obstruct; one party does not want its own tactics used against it when it is out of power. Nevertheless, it is a system of ever increasing entropy, where the power to obstruct can only increase.