Last week, Senate Republican leader Mitch McConnell made an abrupt announcement: he and his party would immediately and arbitrarily take a six-month vacation from doing an important part of their jobs. The task that McConnell declared that he and his followers would refuse to do until after November's elections is confirming nominees to federal appeals courts. His excuse was the "Thurmond Rule," a nebulous Senate tradition that has never actually meant what McConnell says it does. A more accurate name for his plan would be the "Confirmation Vacation."
Throughout the Obama administration, McConnell's strategy has been simply to stall and sabotage as many of the president's initiatives as possible, regardless of the consequences. Last week's judicial nominations decree signals his intention to continue that strategy to the bitter end.
To understand the chutzpah of McConnell's nominations fiat, you first have to understand the mythical "Thurmond Rule" that he is attempting to use as cover. The practice is named for South Carolina Republican Sen. Strom Thurmond, who served for decades on the Senate Judiciary Committee, the very same senator who conducted the longest filibuster in Senate history in an attempt to stop the passage of the Civil Rights Act!
The fact is that the so-called "Thurmond Rule" is not and has never been a rule. Instead, it's the name for the general principle that the minority party in the Senate will slow confirmation of controversial judicial nominees at some point in the months leading up to a presidential election -- with the hope that a new president will soon be making nominations more to its liking.
The practice has been used by both parties in recent decades to stall controversial nominees as the election approaches. But extending the practice so early and using it to block all nominees, even those with strong bipartisan support, is entirely new. In a clear departure from past custom, McConnell is now declaring that even overwhelming bipartisanship doesn't cut it when it advances a nominee put forth by President Obama.
Among those peeved by McConnell's declaration are Republican senators in states who have appeals court nominees waiting for a vote from the Senate. Maine Republican Sen. Olympia Snowe said she'd keep on pushing for her favored appeals court nominee, Maine's William Kayatta Jr., with or without McConnell's support: "I have strongly supported his nomination from day one," she said, "and will continue to work with the bipartisan Senate leadership in an effort to bring his nomination to the floor."
Oklahoma Republican Tom Coburn, who has recently criticized his party's immovability on judicial nominations, told the Oklahoman that he was resigned that a vote on an Oklahoma nominee he supports "is not going to happen." That nominee, 10th Circuit nominee Robert E. Bacharach, Coburn said, is "an awfully good candidate." Earlier, Coburn was more blunt, saying it would be "stupid" for his party to block a vote on Bacharach.
Both Kayatta and Bacharach enjoy strong bipartisan support in the Senate, as demonstrated by the fact that they were approved by the Judiciary Committee by heavily lopsided margins. So was Richard Taranto, a stalled nominee for the Federal Circuit. A fourth nominee who would be stalled indefinitely by McConnell's move, New Jersey's Patty Schwartz, is supported by her home-state governor, Chris Christie, a Republican hero. None of the four would, in reasonable times, be considered controversial nominees affected by an election year slow down. But these are not reasonable times.
In fact, even before McConnell announced that his party would stop cooperating on judicial nominations, Senate Republicans had been doing pretty much the opposite of cooperating. Republicans have obstructed President Obama's nominees to the point that the average Obama confirmed judicial nominee has waited four times as long for a vote from the Senate as did nominees at this point in President Bush's first term. This has contributed to an unprecedented vacancy crisis in the federal courts that has been decried by observers across the political spectrum, including Chief Justice John Roberts. Three of the appeals court nominees whose nominations are now in jeopardy would have received confirmation votes long ago if it weren't for the unnecessary delays that Republicans have imposed on them. (The fourth one -- Robert Bacharach -- was approved by the Committee in early June and under normal circumstances would be receiving a vote right about now.)
The four appeals court nominees who are ready and waiting for Senate votes could fill critical vacancies on the courts tomorrow, if Senate Republicans would let them. They could start hearing cases and start clearing up backlogs left by empty judgeships. They could end long waits for individuals and businesses seeking resolution from a properly functioning court system. But those individuals and businesses seem to be far from the first priority of the gridlock-happy GOP leadership.
From the moment President Obama took office, Senate Republicans focused on blocking a vast swath of legislation and nominees that they opposed, elevating the use of the filibuster to unprecedented heights. They escalated their abuse of the filibuster by blocking a vote on Richard Cordray to lead the Consumer Financial Protection Bureau, simply because they opposed the legislation that created the Bureau. And now, incredibly, they are blocking all nominees for no reason at all. Sen. Coburn was right when he said last March that the charade of blocking judicial nominees "is what makes Americans sick of what we're doing." Lawmakers are elected to conduct business in Washington, not to stop it. McConnell's proposed Confirmation Vacation is exactly what Americans are sick of.