Behind Closed Doors: The Greatest Deliberative Body You Thought You Knew

Introduction

The recent passing of distinguished Supreme Court Justice Ruth Bader Ginsburg brings about an inflection point in modern politics, but perhaps, not for the reasons you might think.[1] This is partly due to the probable invocation of an “unwritten rule” in the Senate that would delay a  judicial nomination to replace the late Justice Ginsburg until after the upcoming election. This unwritten rule was originally referred to as “the Thurmond Rule” based on its first appearance in June 1968 by Senator Thurmond, blocking President Lyndon B. Johnson’s appointment of Justice Abe Fortas.[2] The Thurmond Rule, in its simplest form, requires that “at some point in a presidential election year, the Judiciary Committee and the Senate no longer act on judicial nominations. . . .”[3] This rule has been masked by a series of different names based on those who have invoked it since Senator Thurmond, most commonly, “the Biden rule”[4] and “the McConnel rule.”[5] This rule has the potential to prevent a then-sitting President from nominating a Supreme Court Justice to fill a vacancy; and this is only one of the Senate’s unwritten rules. The ongoing use of “unwritten rules” by the Senate leaves even the most well-informed party with questions of “what other unwritten rules are out there, and how will they affect me?”

Senatorial Favors

Another example of an “unwritten rule” is referred to as “senatorial courtesy.”[6] This unwritten rule states that, “Senators, in the interest of collegiality, are inclined, though not bound, to support a Senate colleague who opposes a presidential nominee from that Member’s state.”[7] Senatorial Courtesy has been found to have “played a part in the defeat of Supreme Court nominations” in the past.[8] Not just a part however—it has  been suggested to be the sole reason for the unsuccessful nominations of William B. Hornblower in 1893 and Wheeler H. Peckham in 1894.[9]

While this particular unwritten rule is admittedly dated, a slightly more recent example is another form of this “senatorial courtesy” when nominating “current or former Members of the U.S. Senate.”[10] “These nominees benefitted from ‘the unwritten rule of the all but automatic approval of senatorial colleagues,’ with the Senate moving quickly to confirm without first referring the nominations to committee.”[11] The most recent invocation of this senatorial courtesy was during Franklin D. Roosevelt’s 1941 Supreme Court nominations where 2 of the 3 nominations were sent to committee where confirmations took 15 and 25 days respectively, while the third nomination (a current Senate Member) avoided committee and was confirmed the same day of his nomination.[12] Both rules may be rather dated, but the use of such “courtesies” sets a precedent upon which any current or future Senate Member might potentially rely.

The Thurmond Rule

The Thurmond Rule plays a particularly important role because the rule is in the spotlight and any changes to its application could potentially affect application of other similarly unwritten rules. The Republican Party will likely advocate the Senate not be required to follow the Thurmond Rule, allowing for the now-sitting republican President Donald Trump to nominate a Supreme Court Justice in response to Justice Ginsburg’s passing. The Democratic Party will likely advocate the Senate to be required to follow the Thurmond Rule, hoping to give Democratic nominee Joe Biden a chance to appoint his own Supreme Court Justice. The rule currently stands as a non-binding practice, but that does not prevent it from becoming a rule. To achieve such a goal, Democratic advocates will most likely attempt to work changes through both the Senate and other legislative bodies. “Although not mentioned in the Constitution, an important role is also played midway in the [nomination] process—after the President selects, but before the Senate as a whole considers the nominee—by the Senate Judiciary Committee.”[13] The Senate Judiciary Committee is established under the rules of the Senate.[14] As such, “[the Judiciary Committee] shall adopt rules (not inconsistent with the Rules of the Senate) governing the procedure of such committee.”[15] Thus, any change requiring the Thurmond Rule to be applied will have to come about through the Senate itself, rather than from within the Judiciary Committee.

To require the Senate to follow such a rule, discretionary tradition would need to transition to legally binding precedent. Some existing Senate traditions include the “Candy desk,”[16] “Seersucker Thursday,”[17] and “Maiden speeches.”[18]  The main authority with “jurisdiction over the internal management of the Senate” is the Senate Rules Committee.[19] The relevant Senate Rule regarding presidential nominations is similar to, and therefore just as vague as, the “advice and consent” language provided in the Constitution.[20] With such vague rules, both written and unwritten, Congress established an Office of Parliamentarian in the House (in 1927) and Senate (in 1935) to provide bipartisan interpretation and application.[21] The Office of Parliamentarian could maybe give an interpretation that requires the application of the Thurmond Rule; however, “[a]s a staff official, neither parliamentarian is empowered to make decisions that are binding on the House or Senate.”[22]

Another mechanism by which a Senate rule may be transitioned from discretionary custom to binding precedent is through a “Question of Order” (aka a Point of Order).[23] “Senators may enforce the Senate’s legislative rules and precedents by making points of order whenever they believe that one of those rules or precedents is, or is about to be, violated.”[24] Points of order are ruled on by either the presiding officer or the Senate collectively.[25] However, the Senate is required to rule exclusively on “point[s] of order that the question pending before the Senate is unconstitutional.”[26] Given the Thurmond Rule’s inherently constitutional nature, any point of order attempting to require its application would be ruled on by the Senate rather than the presiding officer. 11 of the 17 Constitutional points of order raised between the 101st to 113th Congress were “disposed of negatively, either through a direct vote . . . or via a successful motion to table;” thus the chances of an adoption through this method are historically slim.[27] If the point of order is not constitutional in nature, and thus ruled on by the presiding officer, it is still subject to appeal which is debated among the Senate and subject to a majority vote; thus subject to similar chances of success.[28]

There may be a number of ways in which this transition of the rules can happen, as this is not meant to be an exhaustive list. The transition of unwritten practices to legally binding precedent could very well be the natural progression of the Senatorial rules of yester-year. But let this be an attempt at a bipartisan word of caution on that notion. The motives behind such rule adoption should be purely procedural and not political. We have already seen such politically fueled interpretations create precedent via the “nuclear option,” which removes the long-standing requirement of 2/3 supermajority vote to adopt a suggested rule change and replaces it with a modest majority vote.[29] What other unwritten customs of the Senate are going to rear their heads in the future, fueled by early 19th

FOOTNOTES

[1] The White House, Statement from the President on the Passing of Supreme Court Associate Justice Ruth Bader Ginsburg, (Sept. 18, 2020)  https://www.whitehouse.gov/briefings-statements/statement-president-passing-supreme-court-associate-justice-ruth-bader-ginsburg/

[2] Daniel Victor, What is the ‘Thurmond Rule’?, N.Y. TIMES (Feb. 13, 2016) https://www.nytimes.com/live/supreme-court-justice-antonin-scalia-dies-at-79/what-is-the-thurmond-rule/.

[3] Denis Steven Rutkus & Kevin M. Scot, Congressional Research Service, Nomination and Confirmation of Lower Federal Court Judges in Presidential Election Years, RL 34615 at 5 (Aug. 13, 2008), https://fas.org/sgp/crs/misc/RL34615.pdf.

[4] Julie Hirschfeld Davis, Joe Biden Argued for Delaying Supreme Court Picks in 1992, N.Y. TIMES, (Feb. 22, 2016) https://www.nytimes.com/2016/02/23/us/politics/joe-biden-argued-for-delaying-supreme-court-picks-in-1992.html..

[5] Ken Levy, The ‘McConnell Rule’ is law and Senate Democrats should sue to enforce it, THE HILL (July 8, 2018) https://thehill.com/opinion/judiciary/395696-the-mcconnell-rule-is-law-and-senate-democrats-should-sue-to-enforce-it.

[6] Denis Steven Rutkus, Cong. Rsch. Serv., Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, RL 31989 at 7 (Feb. 19, 2010), https://fas.org/sgp/crs/misc/RL31989.pdf.

[7] Id.

[8] Id.

[9] Id. at 24.

[10]Id. at 18.

[11] Id.

[12] Rutkus, supra note 6, at 18-19.

[13] Rutkus, supra note 6, at 2.

[14] Rule XXV(1)(m): Standing Committees—Committee on the Judiciary, 113th Congress, Standing Rules of the Senate, https://www.govinfo.gov/content/pkg/CDOC-113sdoc18/pdf/CDOC-113sdoc18.pdf#page=25 (last visited Oct. 5, 2020).

[15] Rule XXVI(2): Committee Procedure, 113th Congress, Standing Rules of the Senate, https://www.govinfo.gov/content/pkg/CDOC-113sdoc18/pdf/CDOC-113sdoc18.pdf#page=31 (last visited Oct. 5, 2020).

[16] Richard A. Baker & Nancy Erikson, U.S. Senate, Traditions of the United States Senate, S. Pub. 110-11, p.12 (2007) https://www.senate.gov/reference/resources/pdf/Traditions.pdf (last visited Oct. 22, 2020) (referring to the tradition of stocking the desk located in the back row of the Republican side, on the aisle and adjacent to the Chamber’s most heavily used entrance, with candy for the Senators to use freely).

[17] Id. at 13 (referring to the tradition of Senate members wearing seersucker suits on an assigned day in remembrance of the pre-air conditioning, hot summer days of debate).

[18] Id. at 8 (referring to the tradition of having newly appointed Senate members defer their first floor speech for a period ranging from months to years out of respect for senior members).

[19] U. S. Senate, Rules and Procedure, https://www.senate.gov/reference/reference_index_subjects/Rules_and_Procedure_vrd.htm (last visited Oct. 2, 2020).

[20] Rule XXXI: Executive Sessions—Proceedings and Nominations, 113th Congress, Standing Rules of the Senate, https://www.govinfo.gov/content/pkg/CDOC-113sdoc18/pdf/CDOC-113sdoc18.pdf#page=49 (last visited Oct. 2, 2020); See also U.S. Const. art. II, § 2, cl. 2.

[21] Valerie Heitshusen, Cong. Rsch. Serv., The Office of the Parliamentarian in the House and Senate, RS20544 at 1 (Updated Nov. 28, 2018), https://www.senate.gov/CRSpubs/3000ff02-fb09-450c-acec-a407a19c424a.pdf.

[22] Id.

[23] Rule XX: Questions of Order, 113th Congress, Standing Rules of the Senate, https://www.govinfo.gov/content/pkg/CDOC-113sdoc18/pdf/CDOC-113sdoc18.pdf#page=21 (last visited Oct. 6, 2020).

[24] Valerie Heitshusen, Congressional Research Service, Points of Order, Rulings, and Appeals in the Senate, 98-306 at 1 (Nov. 15, 2018), https://www.senate.gov/CRSpubs/f34838c9-bac5-400a-b4f2-76a9bea085b9.pdf.

[25] See id.

[26] Id. at 2.

[27] Valerie Heitshusen, Cong. Rsch. Serv., Constitutional Points of Order in the Senate, R40948 at 5 (Apr. 24, 2017), https://fas.org/sgp/crs/misc/R40948.pdf (last visited October 6, 2020).

[28] Heitshusen, supra note 21, at 2.

[29] Richard S. Beth, Cong. Rsch. Serv., Procedures for Considering Changes in Senate Rules, R42929 at 1 (Jan. 22, 2013), https://fas.org/sgp/crs/misc/R42929.pdf.