A woman holds a sign that reads ‘God Bless the USA and the Scalia Family’ outside the Supreme Court as the body of the late Justice Antonin Scalia lies in repose in the Great Hall (Michael Reynolds/European Pressphoto Agency)

“I have a duty to nominate well-qualified men and women to the federal judiciary. I have done just that, and I will continue to do so. The Senate also has a duty — to promptly consider each of these nominations on the Senate floor, discuss and debate their qualifications and then give them the up or down vote they deserve.”

— President George W. Bush, remarks at a Republican Party event, May 17, 2005

“The Constitution is pretty clear about what is supposed to happen now.  When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone.  The Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court.”

— President Obama, remarks at a news conference, Feb. 16, 2016

There’s an old saying in Washington, the so-called Miles’s Law: “Where you stand depends on where you sit.” It was coined in 1949 by Rufus E. Miles Jr., a mid-level bureaucrat in the Truman administration. But even he noted the concept was probably as old as Plato.

The Fact Checker has been thinking a lot of Miles’s Law lately, in the wake of Justice Antonin Scalia’s death, as we reviewed the statements of various politicians concerning when and how judicial nominations should be considered in an election year.

Presidents, as seen in the quotes above, suggest that the process is simple: The president nominates, the Senate deliberates and the nominee receives an up-or-down vote. But senators vary in their responses, depending on whether they are in the majority and whether the president belongs to their party.

Democrats cite the “Thurmond rule” when it suits them; Republicans say it doesn’t exist — except when it apparently does. Republicans cite the need for a nomination to be completed before the Supreme Court’s term begins in October, while Democrats say it does not matter. Now the two parties have taken opposite positions.

Here’s a sampling of the back and forth. After reading through the various quotes, one cannot be surprised why Americans so often hate politics.

Republican president, Democratic-controlled Senate

It is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not name a nominee until after the November election is completed. The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over. …Others may fret that this approach would leave the Court with only eight members for some time, but as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the Justices four to four are quite minor compared to the cost that a nominee, the President, the Senate, and the nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.”

Then-Sen. Joe Biden, statement on the floor of the Senate, June 25, 1992 (an election year)

“Senator Biden has argued that the nominee would become a victim of a power struggle over control of the Supreme Court. Also, Senator Biden fears that because there are issues of paramount importance facing the Court, a nominee at this time would be unwise. Now, Mr. President, unfortunately, we do not have the luxury of coordinating vacancies on the Supreme Court with times when there are mundane and nonjusticible matters before the Nation. The Senate should not shrink from its responsibility to act on a Supreme Court nominee simply because once confirmed as an Associate Justice there will be tough decisions to make. Article II of the Constitution sets out the powers of the President as head of the executive branch. Section 2 of this article grants the President power to nominate persons to fill judicial vacancies and further appoint them following the advice and consent of the Senate. As I read the Constitution, this is a two-step process. The President first nominates an individual to fill a vacancy and then the Senate approves before the official appointment.”

— Sen. Strom Thurmond (R-S.C.), floor statement in response to Biden, June 25, 1992 (Note that apparently Thurmond himself did not believe in the “Thurmond rule”)

“I would say there has been talk about invoking the so-called Thurmond Rule. The Thurmond Rule could sort of be, if you want it to be, an excuse for slow-walking nominees and not approving the nominees who ought to be approved just because there is a Presidential election on the horizon. Majority Leader Harry Reid mentioned last night that the so-called rule would be invoked in June. Senator [Patrick] Leahy has mentioned before he would invoke it in the second half of this year. Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a presidential election.”

— Sen. Jeff Sessions (R-Ala.), floor statement, April 16, 2008 (election year)

“I am glad that we are going to be hearing testimony today about the so-called ‘Thurmond Rule’ and that the Congressional Research Service has looked into it. We really need to set the record straight on this, because the Democrats are using the ‘Thurmond Rule’ to justify grinding the judicial nomination confirmation process to a halt. Well, I have been on the Judiciary Committee for over 25 years, but I am sorry to say that claims by my fellow Democrats that this slowdown of judicial nominees is justified and that we are now past the time of the ‘Thurmond Rule’ are just bunk. The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a President’s term.

— Sen. Charles Grassley, remarks at a forum hosted by the Senate Republican Conference on “the importance of removing politics from the judicial nomination process,” July 14, 2008 

Republican president, Republican-controlled Senate

“I rise today as the leader of majority party of the Senate, but I do not rise for party. I rise for principle. I rise for the principle that judicial nominees with the support of the majority of Senators deserve up-or-down votes on this floor. Debate the nominee for 5 hours, debate the nominee for 50 hours, vote for the nominee, vote against the nominee, confirm the nominee, reject the nominee, but in the end vote.”

— Sen. Bill Frist (R-Tenn.), floor statement, May 18, 2005

“The majority in the Senate is prepared to restore the Senate’s traditions and precedents to ensure that regardless of party, any president’s judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor. It is time to move away from advise and obstruct and get back to advise and consent.

— Mitch McConnell (R-Ky.), floor statement, May 18, 2005

“The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”

— Sen. Harry Reid (D-Nev.), floor statement, May 19, 2005

“The President of the United States has discharged his constitutional obligation under Article II, Section 2 to nominate justices of the Supreme Court. He has chosen a truly outstanding nominee. It is now our job to provide advice and consent. In doing so, we should follow basically three principles. No. 1, we should treat Judge [John] Roberts with dignity and with respect. No. 2, we should have a fair process. And No. 3, we should complete that process with either an up-or-down vote in time for the Court to be at full strength for its new term beginning October 3 of this year. These principles are simple and they are sound. Unfortunately, the Senate has not always followed them.”

— McConnell, floor statement, May 20, 2005

Democratic president, Republican-controlled Senate

“Until now, even through all the partisan battles of recent decades, the Senate’s constitutional duty to give a fair and timely hearing and a floor vote to the president’s Supreme Court nominees has remained inviolable.

— Reid, op-ed in The Washington Post,  Feb. 15, 2016 (election year)

“We’re just not going to move this nominee because it’s going to allow the next president to fill this seat. We’ve lost a great, conservative, brilliant justice. … As a matter of fact, the tradition is not to confirm someone in the last year and as [Senator] Pat Leahy, when he chaired the committee, has chaired the Judiciary Committee for many years, he just refused time and again to move nominees.”

— Sessions, interview on Fox News’s “The Kelly File,” Feb. 16 

“To leave the seat vacant at this critical moment in American history is a little bit like saying, ‘God forbid something happen to the president and the vice president, we’re not going to fill the presidency for another year and a half.’ ”

— Vice President Biden, interview with Minnesota Public Radio, Feb. 18

“Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.

— Sens. McConnell and Grassley, op-ed in The Washington Post, Feb. 18

The Pinocchio Test

We realize that the lawmakers might object to how these quotes have been presented. Certainly each situation is slightly different — and the rancor over nominations has only grown over time. But there’s enough material here to show that both parties can be viewed as hypocritical, situational and prone to flip-flopping, depending on which party holds the presidency and/or the Senate.

An Upside-Down Pinocchio

 


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