As a lawyer who’s also a bit of a political junkie, I follow Supreme Court appointments pretty closely. In fact, I’m one of those tiresome kossacks who’s always arguing that the biggest reason Bernie supporters should vote for Hillary in the general, or that Hillary supporters should vote for Bernie in the general, is that any Democrat will nominate better Supreme Court justices than any Republican. But I have to confess that until the current debate over replacing Scalia, I’d never heard of the Thurmond rule.
Wikipedia describes the rule thusly:
Thurmond himself said that no lifetime judicial appointments should move in the last six months or so of a lame-duck presidency. In the last year of George W. Bush's second term, Democratic Senator Diane Feinstein suggested that nominees that are not confirmed by June of that year would not be confirmed at all, while Democratic Senator Patrick Leahy stated the rule as meaning "judicial nominations do not advance in the Senate in the latter part of a presidential election year without the support of Senate leaders and top lawmakers on the Judiciary committee."
Now putting aside the obvious problems I have about any rule promulgated by one of the worst racists who has ever graced the American political scene, the application of such a “rule” would have invalidated at least one appointment which worked out pretty well for the country.
Here’s the scenario—the President has been defeated in the general election, and is a classic lame duck. He’s only got about 6 weeks left in his term. And the Senate, which is currently held by the outgoing President’s party, will be in the hands of the incoming President’s party, by a large majority. The office of Chief Justice is vacant. The lame duck President sends a nominee to the lame duck Senate, which confirms him.
Outrageous? Perhaps, but it worked out for the best. The lame duck President was John Adams, whose term ended March 4, 1801 (January 20 didn’t become Inauguration Day until FDR). His nominee was confirmed by the Senate on January 27, 1801. The new Chief Justice was only 45, and remained in that position until 1835. His rulings were central in establishing an independent judiciary (Marbury v. Madison), and a unified country under a strong national government (McCullouch v. Maryland, Fletcher v. Peck, Cohens v. Virginia, Gibbons v. Ogden). In legal/historical circles, John Marshall is known simply as the Great Chief Justice.