Thurmond Rule
Encyclopedia
The Thurmond Rule is an informal and somewhat amorphous rule of thumb
in the United States Senate
. While it originated with former Senator Strom Thurmond
's opposition to President Lyndon Johnson's nomination of Justice Abe Fortas
to be Chief Justice of the Supreme Court in June of 1968, its specifics vary between reports (e.g., "no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency"; or "judicial nominations do not advance in the Senate in the latter part of a presidential election year without the support of Senate leaders and top lawmakers on the Judiciary committee").
Nor is the "rule" universally accepted. It has often been dismissed by Senators of both parties, usually whenever politically inconvenient. For example,
Democratic Senator Patrick Leahy
rejected the rule in the closing months of the Democratic Clinton administration, but later invoked the rule in the last months of the Republican Bush administration
. In 2004, Senator Orrin Hatch
dismissed the rule: "Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me." Some Senators profess ignorance of the rule; asked about its meaning, Senator Trent Lott
wondered if it had to do with how long a Senator should remain in the chamber, given Thurmond's recordsetting tenure.
The rule is inconsistently applied when it is applied at all. For instance, in December 1980, Judge Stephen Breyer
(now a U.S. Supreme Court Justice) was confirmed to the First Circuit Court of Appeals. And in 1984, when Thurmond was chairing the Senate Judiciary Committee, judicial confirmations occurred that fall. Moreover, despite Leahy's letter mentioned above, when Leahy was chairing the Senate Judiciary Committee, a batch of 10 district court nominees were confirmed on September 26, 2008 after having had hearings several weeks earlier.
, with only "six months or so" remaining in his term, and having announced that he would not seek re-election, nominated Abe Fortas
to serve as Chief Justice of the United States
, to replace Earl Warren
as Chief Justice, who had announced his retirement from the Supreme Court of the United States
. The nomination drew opposition from the Republican
members of the United States Senate
.
The "Thurmond Rule" was a factor in the opposition,, but Fortas also received intense scrutiny about having consulted with President Johnson while sitting as an Associate Justice
of the Supreme Court and for having accepted $15,000 for nine speaking engagements at American University Law School, which raised serious questions regarding Fortas' judicial independence. Republican Senators launched a filibuster in opposition to the nomination. Through a face-saving measure arranged by President Johnson, a majority of Senators voted to end debate, but under the rules of Senate, that was insufficient to invoke cloture
. At Fortas' request, Johnson then withdrew the nomination and was not able to appoint a successor prior to the end of his term.
Rule of thumb
A rule of thumb is a principle with broad application that is not intended to be strictly accurate or reliable for every situation. It is an easily learned and easily applied procedure for approximately calculating or recalling some value, or for making some determination...
in the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. While it originated with former Senator Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
's opposition to President Lyndon Johnson's nomination of Justice Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
to be Chief Justice of the Supreme Court in June of 1968, its specifics vary between reports (e.g., "no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency"; or "judicial nominations do not advance in the Senate in the latter part of a presidential election year without the support of Senate leaders and top lawmakers on the Judiciary committee").
Nor is the "rule" universally accepted. It has often been dismissed by Senators of both parties, usually whenever politically inconvenient. For example,
Democratic Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
rejected the rule in the closing months of the Democratic Clinton administration, but later invoked the rule in the last months of the Republican Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
. In 2004, Senator Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
dismissed the rule: "Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me." Some Senators profess ignorance of the rule; asked about its meaning, Senator Trent Lott
Trent Lott
Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....
wondered if it had to do with how long a Senator should remain in the chamber, given Thurmond's recordsetting tenure.
The rule is inconsistently applied when it is applied at all. For instance, in December 1980, Judge Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
(now a U.S. Supreme Court Justice) was confirmed to the First Circuit Court of Appeals. And in 1984, when Thurmond was chairing the Senate Judiciary Committee, judicial confirmations occurred that fall. Moreover, despite Leahy's letter mentioned above, when Leahy was chairing the Senate Judiciary Committee, a batch of 10 district court nominees were confirmed on September 26, 2008 after having had hearings several weeks earlier.
Abe Fortas controversy
In June 1968, President Lyndon B. JohnsonLyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
, with only "six months or so" remaining in his term, and having announced that he would not seek re-election, nominated Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
to serve as Chief Justice of the United States
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
, to replace Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
as Chief Justice, who had announced his retirement from the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. The nomination drew opposition from the Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
members of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
.
The "Thurmond Rule" was a factor in the opposition,, but Fortas also received intense scrutiny about having consulted with President Johnson while sitting as an Associate Justice
Associate Justice
Associate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
of the Supreme Court and for having accepted $15,000 for nine speaking engagements at American University Law School, which raised serious questions regarding Fortas' judicial independence. Republican Senators launched a filibuster in opposition to the nomination. Through a face-saving measure arranged by President Johnson, a majority of Senators voted to end debate, but under the rules of Senate, that was insufficient to invoke cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
. At Fortas' request, Johnson then withdrew the nomination and was not able to appoint a successor prior to the end of his term.