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66 Emory L.J. Online 2001 (2016-2017)

handle is hein.journals/emyon66 and id is 1 raw text is: TRANSFORMING THE THURMOND RULE IN 2016 Carl Tobias* Senators vigorously dispute the Thurmond Rule's (Rule) meaning in the 2016 presidential election year. Developed by Strom Thurmond (R-S.C.), the Rule is a peculiar tradition-not a statute or even a powerful dictate, like Senate rules, which bind members. The party not controlling the White House systematically invokes the custom during presidential election years to halt judicial designees' consideration until November with the hope that its standard bearer prevails and, thus, can appoint jurists. This evaluation suggests that the Rule invites partisan manipulation, shifting with the political winds to suit both parties' distinct needs. For example, in 2004, when then-Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) deployed it against George W. Bush's nominees, then-Chair Orrin Hatch (R- Utah) and current-Majority Leader Mitch McConnell (R-Ky.) strenuously asserted that no Thurmond Rule existed. In 2008, current-Chair Chuck Grassley (R-lowa) similarly deemed the Rule plain bunk. This year, he and McConnell characterized the tenet as flexible, while Grassley declared that nominee confirmations generally end at the summer recess. Because confusion plagues definition of the stricture, and the Rule's incessant use dramatically exacerbates the vacancy crisis, its perpetuation merits scrutiny. This piece first analyzes the Rule's history. Part II explains the convention and its deleterious consequences. Finding that each party reinterprets the notion to stymie appointments-which perverts the selection process, deprives courts of judicial resources for delivering justice, and intensifies the confirmation wars-the final Part proffers solutions. Because the Rule has multiple detrimental effects, it warrants abolition. - Williams Chair in Law, University of Richmond. I wish to thank Margaret Sanner for valuable suggestions, Katie Lehnen for valuable research, Leslee Stone for excellent processing, the Emory Law Journal editors for careful editing, as well as Russell Williams and the Hunton Williams Summer Endowment Research Fund for generous, continuing support. Remaining errors are mine alone.

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