The Thurmond "Rule"

By Thomas Meijer

On 13 February, American supreme court justice Antonin Scalia passed away, opening up a seat of the bench of the supreme court.[1] Obama would obviously like to nominate a liberal democrat to fill up this vacancy, however this would presumably tip the current balance of four democrats and four republicans to the left, for at least the next two presidential terms.[2] The republicans have been quick to invoke the so-called ‘Thurmond Rule’ – which “is a Senate practice wherein no nominations are decided within the last few months of a presidential election year.”[3] Thus this would supposedly prohibit president Obama to appoint a new judge, and let that decision be made by the next president. While the Thurmond Rule is referred to as an unwritten rule – or informal institution -  I doubt whether it holds up as such.                              

The Thurmond Rule is not written down, thus making it ineligible as a formal institution. After closer inspection, one can argue that the Thurmond Rule is not eligible as an informal institution either. I take Helmke and Levitsky’s definition of an informal institution as “socially shared rules, usually unwritten, that are created, communicated, and enforced outside of officially sanctioned channels”.[4] The Thurmond Rule, however, is not necessarily enforced outside of officially sanctioned channels. In the 20th century there have been 6 cases where appointments were made in an election year.[5] If a party holds the majority in the senate, they will be able to vote against an appointment by the president, with at least 51 votes.[6] However, the Thurmond Rule never became an informal bipartisan agreement.[7] Thus only if one party holds the majority in the senate and is facing an appointment by the president of the opposite party, will they have incentives to invoke the Thurmond Rule and enforce it. Rather than being an informal institution, the Thurmond Rule seems to be a republican obstructionist tool that they can use whenever this comes to their aid.

[1] http://www.economist.com/blogs/democracyinamerica/2016/02/antonin-scalia-1936-2016

[2] Ibid.

[3]https://www.researchgate.net/publication/281672260_The_Logic_of_Collective_Inaction_Senatorial_Delay_in_Executive_Nominations

[4] http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=266163&fileId=S1537592704040472

[5] http://www.economist.com/blogs/democracyinamerica/2016/02/antonin-scalia-1936-2016

[6] http://www.economist.com/blogs/economist-explains/2016/02/economist-explains-16

[7] http://www.acslaw.org/sites/default/files/pdf/ACS%20Talking%20Points%20-%20The%20Thurmond%20Rule.pdf