No sooner had the news of Justice Antonin Scalia’s death been announced when Senate Majority Leader Mitch McConnell (R-KY) let it be known that the Senate would not even consider hearings on his successor.
In a swift statement designed to warn Barack Obama against even nominating a replacement, Senate Majority Leader Mitch McConnell (R-Ky.) pledged to sit on his hands for the remaining 11 months of the president’s term.
“The American people should have a voice in the selection of their next Supreme Court Justice,” the statement read. “Therefore, this vacancy should not be filled until we have a new President.”
Other conservative politicians invoke the Thurmond Rule
The Thurmond Rule is an informal and somewhat amorphous rule in the United States Senate regarding confirmations of judicial nominees. While it originated with former segregationist 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 1968 (as retribution for LBJ’s passage of the Civil Rights Act), the specifics of the rule vary between sources. Thurmond himself said that no lifetime judicial appointments should move in the last six months or so of a lame-duck presidency. In the last year of George W. Bush‘s second term Democratic Senator Diane Feinstein suggested that presidential nominees that are not confirmed by June of that year would not be confirmed at all, while Democratic Senator Patrick Leahy stated the rule as meaning “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.”
This unwritten rule is not universally accepted. It has often been dismissed by Senators of both parties, usually whenever politically inconvenient.
Besides being a racist, homophobic, misogynist, Justice Scalia was an originalist , holding to the principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment. Under that principle, he most likely interpreted Article II, Section 2, Clause 2, known as the Appointment Clause, as meaning that the current sitting president has the right to nominate his replacement and that the Senate has the obligation to approve or disapprove that nominee.
[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
I suspect that he would strongly disagree with the conservatives’ unprecedented efforts to block his replacement until after a new president is elected.
Sen. McConnell and the conservative minority who want to hold to the non-existent Thurmond rule insult the memory and principles of the man that they hold in such high regard.