William Kayatta and the Needless Destruction of the Thurmond Rule

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Why do Republican leaders still play along with an informal Senate rule that prevents up-or-down votes on even those judges who have strong Republican support?

Strom ThurmondThe late Senator Thurmond (Reuters)

Meet William Kayatta, another one of America's earnest, capable judges-in-waiting. Widely respected in his home state of Maine, nominated by President Obama in January to fill a vacancy on the 1st U.S. Circuit Court of Appeals, eagerly endorsed by both of Maine's Republican senators, passed for confirmation to the Senate floor by an easy voice vote in the Senate Judiciary Committee, Kayatta's nomination instead has become yet another victim of the Senate GOP's suicidal tendencies.

The litigants of the 1st Circuit need Kayatta. There are no serious arguments against him. Yet the Republican leadership in the Senate has blocked a vote on the merits of his nomination in obedience to the so-called "Thurmond Rule," an informal practice as self-destructive as was its namesake. The Thurmond Rule is typically invoked by the opposition party in a presidential election year to preclude substantive votes on federal judicial appointments within six months of Election Day. It is the Senate's version of a sit-down strike.

In April, just after the Judiciary Committee favorably passed along Kayatta's nomination to the Senate floor for confirmation, Maine's junior senator, Susan Collins, had wonderful things to say about the nominee:

Bill is an attorney of exceptional intelligence, extensive experience, and demonstrated integrity, who is very highly respected in the Maine legal community. Bill's impressive background makes him eminently qualified for a seat on the First Circuit. His thirty-plus years of real world litigation experience would bring a much-needed perspective to the court. Maine has a long proud history of supplying superb jurists to the federal bench. I know that, if confirmed, Mr. Kayatta will continue in that tradition. I urge the full Senate to approve his nomination as soon as possible.

And how did her fellow Republicans respond to her request? They blew her off. There has been no vote on Kayatta's nomination and none is scheduled. Instead, last month, Sen. Mitch McConnell, the Senate Minority Leader, invoked the "Thurmond rule" to block floor consideration of Kayatta's appointment-- as well as up-or-down votes on the rest of President Obama's federal appellate nominees (This, in turn, initially prompted Sen. Collins to blame the Obama Administration for going too slow in nominating Kayatta in the first place.)

In theory, the Thurmond Rule is something official Washington defends as the price of divided government. In reality, it's another outrageous example of how the Senate has re-written the Constitution by filibuster. In practice, in the Kayatta case and many more, the Thurmond rule is the antithesis of good governance. Your Senate today perpetuates a frivolous rule which, for the most cynical political reasons, blocks qualified people from serving their nation. It's not misfeasance. It's malfeasance.

Just because Strom Thurmond was willing to jump the Senate off the bridge doesn't mean that today's Senate Republican leaders had to do likewise.

In a more prudent and practical era in Senate history, nominees like Kayatta would have been confirmed in days. Fifty years ago, for example, when another bright Democratic appointee with strong Republican support came to the Senate seeking a judgeship, the Judiciary Committee took all of 11 minutes before it endorsed him. Byron "Whizzer" White then served the next 31 years as an associate justice of the United States Supreme Court. That's wholly unthinkable today -- even with lower federal court nominees.

Now even slam-dunk candidates like Kayatta linger in the wings waiting for Senate "consent" long after the body already has definitively "advised" the executive branch of how great it thinks the nominee would be as a judge. Can you imagine the uproar if the Senate ever used its filibuster power to block the deployment of troops already endorsed by the Armed Services Committee? Now please tell me the material difference here. Surely, the judiciary needs judges as much as the army needs soldiers.

There are currently 76 judicial vacancies around the country. There are 31 districts and circuits designated as "judicial emergencies" because vacancies there have lingered so long. In the 10th Circuit, what's happening to Kayatta is happening to Robert Bacharach, who has the support of Oklahoma's two Republican senators. The Senate also is blocking Richard Taranto from a Federal Circuit spot even though he breezed through the Judiciary Committee and has been endorsed by Robert Bork and Paul Clement. The same goes for Patty Shwartz in the 3rd Circuit.

This is unacceptable on every level. When we talk about "false equivalence" in modern politics the business of these judges should be the lede. These nominations require no great policy choices on the part of Congress. They don't come with thousands of pages of ambiguous legalese disguised as the language of a federal statute. There is no room for spin. These nominees are either qualified, or they aren't, and when they sail out of the Judiciary Committee with voice votes no one can plausibly say they aren't qualified.

And yet here we are. It would be convenient to blame Strom Thurmond, one of the most divisive politicians of the 20th century, for one of the Senate's most divisive rules. But Thurmond is long gone. And there was never anything about his rule that demanded it be followed, session after session, under both Democratic and Republican control. Just because Strom Thurmond was willing to jump the Senate off the bridge, in other words, doesn't mean that today's Senate Republican leaders had to do likewise. But they have.

America has trouble enough today without a senseless Senate rule that blocks highly skilled, highly competent public servants from joining government. The nation's litigants in federal court, burdened by judicial vacancies, already are waiting long enough to have their corporate disputes decided. This isn't gridlock. This is destruction. "I think it's stupid" to block good judges from confirmation, Sen. Tom Coburn said earlier this year. For once, he is right. And Sen. Collins? Even she's come around. "I have urged my colleagues on both sides of the aisle to give Bill the direct vote by the full Senate that he deserves," she said late last month. Amen to that.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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