Lee: Senate Must Protect Its Institutional Rights and Impose the Leahy-Thurmond Rule

July 30, 2012

WASHINGTON—Today, Senator Mike Lee (R-UT) issued the following statement in advance of the Senate's nominations vote this evening:

"The Constitution assigns to the Senate the right and duty to advise and consent to the President’s judicial nominees.  During President Obama’s term in office, the Senate has acted responsibly in carrying out this role.  Indeed, numerous measures demonstrate that the Senate has treated President Obama’s judicial nominees fairly, confirming them at a greater rate and more quickly than the Democratic Senate confirmed President Bush’s nominees.

 "It is essential for the Constitution’s separation of powers that the Senate protect its legitimate role in the nominations process against encroachment by the executive branch.  To prevent a particular President from packing the courts at the end of his term by appointing influential life-tenured judges whose service will span numerous other presidential administrations, the Senate has traditionally ceased confirming federal appellate court nominees after the spring of a presidential election year.  This tradition and precedent is known as the Leahy-Thurmond rule.

"Many of my colleagues from the other side of the aisle have vigorously enforced the Leahy-Thurmond rule in past presidential-election years, and it makes sense that we apply that precedent today.  Indeed, we are already past the time at which the Senate traditionally enforces this rule.

"This year, applying the Leahy-Thurmond rule is justified for an additional reason.  On January 4, 2012, President Obama made four unprecedented and unconstitutional appointments to significant executive branch positions. The President made the appointments without the advice and consent of the Senate.  Although he asserted that the appointments were made pursuant to the Constitution’s Recess Appointments Clause, the Senate plainly was not in recess at the time of the appointments.

"In justifying his unconstitutional appointments, President Obama asserted that he may unilaterally decide when the Senate is and is not in session for purposes of the Recess Appointments Clause.  This reckless assertion of executive power and encroachment on the legislative branch cannot go unchecked.  As duly sworn members of Congress, we have an institutional and constitutional duty to preserve and defend the rightful prerogatives of the legislative branch, particularly from the encroachments of the executive. "