Scalia and the Thurmond Rule


Antonin Scalia, Constitutional Textualist

Republicans love traditions. It is one of their defining characteristics.   They like to protect and preserve stuff.

Justice Scalia loved traditions. He was a true conservative, who believed his calling in life was to preserve the integrity of the constitution, not as it might be applied to the realities of life in the 20th and 21st centuries, but as it was originally written. As it was intended by the men who wrote it. He was known as a textualist. An originalist. And that is what makes the current partisan divide over naming his replacement so delightfully ironic.

You see, the TEXT of the constitution states, in Article II, Section 2, “(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint.. Judges of the Supreme Court.”

It doesn’t say “unless it is an election year” or “unless the majority of Senators don’t like the President.”

If you want to be a conservative, a textualist, an originalist, (like Scalia), you don’t have the luxury of inserting “but” and “if” or “unless” into the reading of the constitution. Unless you are a Republican in 2016.   Or, ironically, a civil rights era racist.   And in one of the greatest ironies of our era, modern day Republicans have invoked an unwritten, unenforceable “rule,” originally proclaimed almost half a century ago, by a Senator hell-bent on preventing a Supreme Court nomination of anyone who might be in favor of civil rights.


Strom Thurmond, Career Racist

Strom Thurmond said a lot of things during his record-breaking tenure in the Senate. During a 24 hour and 18 minute filibuster in 1957, (the longest filibuster to date!) he argued for the continuation of racial segregation, against voting rights for black citizens, and against any form of civil rights legislation. Before that, back in 1948, Strom Thurmond said “all the laws of Washington and all the bayonets of the Army cannot force the Negro into our homes, into our schools, our churches and our places of recreation and amusement.” But those words are not the words that republicans want enshrine right now.

Instead, Republicans would like to enshrine some words that Senator Thurmond spoke in June of 1968. These words are now known as the Thurmond Rule.

The Thurmond Rule was never written down. His words were not broadcast on CSPAN. You can’t view him speaking on youtube. So no one seems to be exactly sure of what he said. There are no real records. But suddenly, these obscure, never recorded words, have been embraced by the Republican Party as a beloved and sacred tradition.

So what is this Thurmond Rule? And how did it come to be?

Apparently, back in June of 1968, Senator Thurmond was not delighted by Lyndon Johnson’s nomination of Abe Fortas to the Supreme Court. Given that Johnson was a champion of Civil Rights legislation, and given that Strom Thurmond was deeply committed to preserving racial segregation, it is not surprising that the Senator was concerned about any Johnson nomination to the Supreme Court.   So with the same obstructionist fortitude with which he delivered his 24 plus hour filibuster, he proclaimed that it should be the next president, not Johnson, who appointed the next Supreme Court Justice.

As it turned out, Nixon, who won the presidential election by a landslide 5 months later, got to nominate Warren Burger to the Supreme Court. So Thurmond won.   And his words became known as the Thurmond Rule.


The Republicans 2016, Inconsistent Hypocrites

Out of respect for Justice Scalia, the Republicans are invoking the “Thurmond Rule.” They have chosen to disregard the textualist tradition of Justice Scalia, and instead interpret the constitution in a way that was certainly not the intention of its original authors. So it is an odd manifestation of their respect.

This is not to say that Scalia and Thurmond might not have been kindred spirits. Indeed, their words sometimes echo the same, eerily scathing fear and hatred. In Scalia’s dissenting statement from Lawrence vs Texas he wrote “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” So similar to Thurmond’s 1948 proclamation. Minus the bayonets.

And so we find ourselves in a time in which our Republican elected officials do not even veil the fact that they are committed to ensuring that the next Supreme Court Justice is someone who  will fight to revoke the newly won civil rights of GLBT Americans.  Someone whose religious beliefs will trump a women’s right to control her own body.  Someone who will dismantle, or rule unconstitutional, the Executive Orders issued by our first black President. They want someone just like Justice Scalia. And they are willing to disregard his legacy of textualism in order to pursue other aspects of his rigid legacy.

Strom Thurmond created a “rule” to prevent a pro civil rights President from appointing like-minded judge to the Supreme Court.  And the great irony is that as modern day Republicans invoke the Thurmond Rule and cite it as tradition, their intention is to do the same.




The Thurmond Rule, of course, is not a very strong argument for inaction.  So in addition to the Thurmond Rule argument, the Republicans have also insisted that there is an unrelated “80 Year Tradition” that needs to be respected.    John Oliver dissected that tradition in a video that I promise will have you laughing hard.  Please take a few minutes of your life to watch it here:  [otw_shortcode_button href=”” size=”medium” bgcolor=”#000000″ icon_position=”left” shape=”square”]John Oliver on 80 Year Tradition[/otw_shortcode_button]







Photo Credit:
By Supreme_Court_US_2009.jpg: Steve Petteway, Staff Photographer of the Supreme Court (evidence that he took it is here (LinkedIn profile here U.S. Federal Government. Supreme Court archivist’s office confirms that this is photo number 2009-03882 and that a permanent catalog number will be assigned.derivative work: Wehwalt (talk) – Supreme_Court_US_2009.jpg, Public Domain,


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