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Background, Solution on Thurmond Rule

Some quick background on what is going on in the U.S. Senate and how conservatives are putting partisan politics ahead of actual solutions. Then, some ways you can continue to make a difference.


Conservative Senate leadership has decided to shut down circuit court confirmations for the rest of the year, invoking what has come to be known as the “Thurmond Rule.”  This includes the 5th Circuit which has a judicial emergency and covers Texas. 

This is not a difference of opinion on a nominee's qualifications but rather entirely based on the proximity to the election in November and the political games that are in full force when it comes to lifetime appointments to the federal bench.  I wanted to reach out and give you some background on what the Thurmond Rule is, some additional information on the practice historically and what you can do to influence the process right now. 

As we have discussed over the past year, the federal judiciary which decides cases about civil and human rights, free speech, women’s health, clean water, clean air, health care, immigration and labor has become increasingly more hostile to a progressive view of the constitution. And with the court’s shift to the right, increasing hostility to the issues we are fighting for every day.  More than 10% of the nation’s jobs for federal judges are still waiting to be filled.  Roughly 92 judicial seats across the country are empty because of partisan games. 

Last week even the President of the American Bar Association, a Republican and open critic of President Obama, sent a letter to Senator McConnell encouraging the Republicans to end their obstruction of three appellate judges waiting to be confirmed.

So what exactly is the Thurmond Rule?  Named after the late Senator Strom Thurmond, it is a perceived practice by the opposition party to refuse to even allow a vote on high-level judicial nominees in the run-up to an election.  But in recent history, only the conservatives have used it to block consensus nominees.

Here are some facts about the rule that conservatives aren’t mentioning:

In the last five Presidential election years, Senate Democrats have never blocked a Circuit court nominee reported with bipartisan support from having an up or down vote in the Senate.

  • Senate tradition has been that in Presidential election years, nominees receive a vote unless they do not have bipartisan support.  In the past 5 presidential election years, Senate Democrats have never denied an up or down vote to any circuit court nominee of a Republican president who received bipartisan support in the Judiciary Committee.
  • In the past 5 presidential election years, only 4 circuit nominees reported with bipartisan support have been denied an up or down vote on the Senate Floor, and all 4 were nominated by President Clinton.
  • While Senate Democrats have been willing to work with Republican presidents to confirm circuit court nominees with bipartisan support, Senate Republicans have repeatedly obstructed the nominees of Democratic presidents.  In the previous 5 presidential election years, a total of 13 circuit court nominees have been confirmed after June 1; 12 of the 13 were Republican nominees.

Senate Republicans’ decision to impose the “Thurmond Rule” on President Obama’s circuit court nominees is simply another name for their continuing obstruction of badly needed judges in our nation’s courts. 


So what can you do? 

  1. Ask Senator Reid to file a cloture petition on circuit court nominee William Kayatta to force moderate Republicans to publicly choose obstruction over their judicial candidates. Send a quick note to George Holman (Senator Reid’s staffer on this issue) asking for a cloture petition on Judge William Kayatta, today.
  2. Senator Cornyn has come out in favor of stopping all circuit court nominations until after the election, to include the open 5th Circuit Seat which covers all of Texas. Contact Matt Johnson, Senator Cornyn’s judiciary staffer, at and ask Senator Cornyn to put Texas over political games and vote for cloture on consensus nominees.  

If you are part of a group or want information, facts sheets, or talking points on how this crisis in our courts affects your community and the issues important to you, just let us know what you need to be successful.

Your efforts have made a difference in this battle.  When we started, Texas had the most Judicial Emergencies in the country. Now, we are waiting for Senators Cornyn and Hutchison to submit nominees again. Both the White House and Senate Judiciary staff have reiterated how your work has pushed the confirmation process forward this year, specifically that they couldn’t have accomplished the confirmations they were able to get through without your work in the states. The impact you are making is felt deep in the halls of Congress and it is precisely why we will not stop this work until every judicial vacancy is filled in Texas.