In this new paper, Russell Wheeler analyzes use of the so-called “Thurmond Rule”—the historical practice of the Judiciary Committee and the Senate slowing down the pace or completely stopping the judicial nominations process in the run-up to a presidential contest—in the past four election cycles.
Confirmations in the four most recent presidential election years, especially for district nominees, have been more robust than most formulations of the Thurmond rule would have predicted. Those experiences, though, may have little predictive value for 2012. The shifting landscape of judicial nominations and confirmations, as described in January, makes it risky to look to the past to predict how the increasingly contentious confirmation battles will play out in 2012. Being a “consensus nominee” may have been a ticket to confirmation in earlier years, but it’s difficult even to define the term in 2012, when nominees with little if any opposition still have a hard time getting floor votes. And Republican senators’ objections to the president’s January recess appointments to some executive branch positions may also affect the judicial confirmation process.
Nevertheless, the 2004 Senate—with a 52-member Republican majority—confirmed district judge nominees at about the same rate as the Senate had confirmed district nominees in 2001-03—in the mid-80 percent range. Based on that precedent, it’s tempting to say that the 2012 Senate—with essentially a 53 member Democratic majority—will confirm district judges at at least the same rate as the Senate had confirmed district nominees in 2009-2011—in the mid-70 percent range.