Why Seek Consensus When You Can Complain?

As we have noted several times in the past, nothing can rally the Right quite like a battle over judicial nominations – and just because there aren’t any high profile battles taking place right now doesn’t mean the Right isn’t still complaining about the issue:

In an interview with Cybercast News Service, Curt Levey, general counsel of the Committee for Justice, pointed out there is always a temptation for those who are in the opposite party from the president “to not fill vacancies in the hopes that the next president will be from their party.”

“That temptation becomes very great when you’re only a few months away from an election,” Levey added.

However, Levey and others question whether the Thurmond Rule has ever actually existed.

There is no explicit deadline for the rule to take effect within the election year, and the term “consensus nominee” also has no definitive meaning.

Levey might not believe the Thurmond Rule exists, but it does and this article from 1980 explains where it origniated:

14 September 1980
The New York Times

Senate Republicans have begun an organized campaign to use various parliamentary strategems, from committee boycotts to filibusters, to ”slow down or completely stop” Presidential appointments that could outlast the Carter Administration.

The action was taken last month by the 41-member Senate Republican Caucus, which appointed a three-member committee to sift 155 pending Presidential nominations and weed out those whose terms would overlap that of a new President.

The primary targets include 13 judicial nominees as well as nominees to vacancies on the Nuclear Regulatory Commission, the National Labor Relations Board, the Securities and Exchange Commission, the Equal Employment Opportunities Commission and the Legal Services Corporation, among other agencies. Not affected are nominations to advisory boards and those who serve at the pleasure of the President without any fixed term.

Republicans contend that they are merely upholding a Senate tradition in preventing President Carter from making election-year appointments to positions that a Republican President could be able to fill.

If Republicans are concerned about getting President Bush’s judicial nominees confirmed before he leaves office, one way to overcome the Thurmond Rule would be to consult with senators and nominate consensus nominees – of course, that is exactly the opposite of what they are doing:

Colorado Sen. Ken Salazar, one of 14 senators who broke a logjam of judicial appointments in the 2005 ”Gang of 14” compromise, said Thursday the White House has failed to consult with him on appointments to the federal district court in Denver.

”I have not been consulted with by the White House in any way, shape or form on these judicial nominations,” said Salazar, a Democrat. ”In my view, it’s a violation of our understanding with the president and the requirement of the Constitution.”

With pressure mounting to supply the president with names of potential judges, [Republican Senator Wayne] Allard said Thursday that he and Salazar could not agree on candidates after beginning discussion in September.

Allard said he had proposed a list of four candidates that included a Democrat, an undecided and two Republicans one of which was endorsed by Democratic Gov. Bill Ritter, a former Denver district attorney.

But Allard said Salazar, a Democrat, was unhappy with the list. Allard said he submitted the names anyway.

Allard said the president has already vetted the names he submitted and is ready to release them.