Scalia’s Replacement and the Thurmond Rule
The Thurmond Rule:
Definition: An unwritten rule of the Senate. No president should make a lifetime
appointment to the judiciary in his last six months in office.
Reality: Strom Thurmond was a racist pig dog, who when he was not raping his
family’s sixteen year old black maid, never met an African-American he did not think
looked better swinging by a rope from a tree. He was so outraged by President
Harry Truman’s desegregation of the military that he ran for president as a Dixiecrat
and actually won four states in 1948. The longest filibuster in the history of The
United States Senate was not over some Mr. Smith Goes To Washington noble cause,
but rather Thurmond trying to block the 1957 Civil Rights Act. He was so troubled
by Lyndon Johnson’s 1964 Civil Rights Act that he switched parties to become a
Republican. This racist stain of a human being finally died in office at 100, the oldest
serving Senator in U.S. history. Hopefully he discovered that God was a giant black
man that looked like Shaft if he somehow got to heaven.
The Thurmond Rule was created in 1968. Martin Luther King, Jr. and Robert
Kennedy had been killed and it looked like the whole country was coming apart.
Richard Nixon, through the “southern strategy” sought to divide people along racial
lines in order to win the presidency. (For you young’ins out there, Ted Cruz is the
Hanna-Barbera cartoon version of Nixon, just with a lot more Jesus and less five
o’clock shadow.) Much like how Donald Trump used fear of Mexican immigrants and
Muslims under every bed to prey on voters’ fears today, the Republicans were using
the fear of Black Power, hippies, communists, radical domestic terrorist groups and
an African-American in every white daughters’ bed to scare middle class America. I
guess the more things change the more they stay the same.
Nixon’s biggest cheerleader was Strom Thurmond, who played powerbroker at the
1968 GOP convention by holding the south for Nixon in the face of a late insurgent
run by future president Ronald Reagan and making sure liberals Charles Percy or
Mark Hatfield were not considered for the vice-presidency.
Thurmond hated the Earl Warren led Supreme Court, in particular Justice Abe
Fortas, because they had repeatedly ruled time after time that segregation was not
lawful. Fortas, on the bench, was a forceful advocate for criminals’ rights, children’s
rights and the rights of minorities. (For Iowans, Justice Fortas wrote the decision for
Tinker v. Des Moines Independent School District, which stated that three students
had the right to wear black armbands in protest of the Vietnam War. It was the first
time the First Amendment was extended to schoolchildren.) So, we have a powerful
racist politician who wants to make America great again, excuse me, segregated
again, and a liberal judge, what could possibly go wrong with that?
With President Johnson deciding not to run again, Robert Kennedy’s assassination
and the Democrats drowning in the presidential race due to their own
incompetence, Chief Justice Earl Warren decided to retire, fearing a Nixon
presidency and the kind of jurist that Tricky Dick would replace him with. Johnson
decided to nominate his close friend and advisor, Fortas, to become Chief Justice.
Boom goes the dynamite. Not only was Johnson going to get a chance to name
another one of those “[African-American] loving judges,” but Strom was going to
make Fortas pay for all of Johnson’s socialist ways by denying his candidate the
position of top man on the court. Earl Warren was forced to stay on the bench for
another year until newly elected Richard Nixon appointed Warren Burger to replace
When Republicans talk about the unwritten Thurmond Rule like it was handed
down with the Ten Commandments, it is best to understand what the Thurmond
Rule really was. It only exists because an old racist was so angry at the thought of
African-Americans being treated with respect and dignity under the law. Instead of
accepting that his Gone With The Wind world was gone and that Tara was not going
to be rebuilt, Strom pouted and got his way. This is not a thin fig leaf of protection I
would want to use to deny a president his right to name a replacement, especially
because it shines a light on other parts and attitudes you would not want others to
see. In other words, your racist/sexist/homophobic twig and berries might be
A lot has changed since Lyndon Johnson nominated Abe Fortas in 1968 and
shockingly a lot of the social issues remain the same, but one of the things that has
changed is that newly nominated individuals for the Supreme Court used to be slam
dunks, but not anymore. Whether a Senator liked or disliked a candidate’s judicial
philosophy mattered little in the past. What was important was whether the person
is qualified and not a nut job. In a sense, the Senate’s job was basically paper
Elena Kagan, President Obama’s last Supreme Court nominee, only received five
Republican votes, even though she was extremely well qualified. What used to be
boring hearings have turned into Kabuki theater and gamesmanship. All of this
modern hostility dates back to the Reagan administration and the growing power of
special interests. When one looks at whom to blame, it quickly spirals into a chicken
or egg type of debate. Basically our Senators have become like five-year-olds
fighting over who touched who first and want to take their ball and go home if they
don’t win. (Obama was just as guilty when he was in the Senate.)
Washington is broken because the American people keep sending broken toys in
the form of politicians to Washington. Nobody wants it fixed. They just want their
way. What is best for the country has been replaced by what is best for one’s party
or one’s special interest group.
I was shocked when I heard the news that Antonin Scalia had died. I guess I figured
Dick Cheney and him would live forever being comprised mostly of mechanical
parts in some fall out shelter in Montana, surfacing from time to time to make some
outrageous statement. I knew his death would result in blood on the streets of
I believe that allowing President Obama to nominate a replacement justice is a
golden opportunity for the Republican Party and, more importantly, for the country.
Hear me out. Oh, I think GOP Senators should negotiate behind the scenes to get a
moderate candidate they can swallow. It would not be politics without a little horse-
With or without naming the replacement for Scalia, the next president will
probably get at least two bites at the Supreme Court apple with replacements for
Ruth Bader Ginsburg (83), Anthony Kennedy (79), and possibly Stephen Breyer
(77). With a Republican president, at worst, it would return to a 5-4 court. (Is it me
or does Ginsburg seem to get smaller and smaller every day? Is she secretly the
superhero The Atom?
More importantly for the Republicans, the Senate is at stake in the next election
and the numbers don’t look good for them. With the Republican Party in jeopardy of
losing their majority, as much as a moderate Obama appointing a moderate justice
keeps the GOP up at nights, imagine the nightmares around a Hillary Clinton or
socialist Bernie Sanders having their candidate pass through a Democratic
controlled Senate. It is a huge gamble on the GOP’s side. I hate to say this, but I smell
a little Strom Thurmond musk in their efforts.
Some year, the shoe is going to be on the other foot. At some point in his or her
final year, a conservative president is going to find himself or herself with a liberal
Senate wanting to appoint a justice in his last year in office or in an election year.
The American people claim they are tired of a broken Congress, of the silly fighting
with nothing getting done. This is a golden opportunity to prove it wrong. A
Republican Senate could prove that they are the party of adults, tell the American
people that enough is enough, and that we need to return to a time when Supreme
Court nomination hearings were boring. We do not need stealth candidates talking
in code in order to sneak through a Senate who is looking to see if they farted in
church once to vote against them. As the party of adults, they would let the
American people know that they hope the Democrats follow suit in the future and to
punish them if they don’t.
I honestly believe the American people would reward them with probable control
of the Senate and a possible White House victory. At some point, the American
people need to demand our politicians grow up, even if we like them. To me, it is a
better gamble for the GOP than hoping that the next president is not a Democrat or
named Trump, who would probably appoint one of the keno girls in one of his
casinos to the position. More importantly, it is right for the country and that is all
that matters in the end.