John Oliver released this week a video that lived up to his consistently funny and incisive reputation. It accused Republican senators of “making shit up.” His video smartly derided the legislators for their staunch positions on the power of President Obama to appoint Supreme Court justices in the last year of his presidential career. Oliver showed ample example of times of when those same Senators and their ideological forebears had confirmed justices under similar circumstances.
President Obama joined the fray on Tuesday. He led off his news conference with a sentence or two about the non-existent rule that says a president can’t fulfill his constitutional responsibility.
All due respect to these two titans, but they’re wrong. It’s not bullshit the Republicans are spraying. And the rule’s not a myth. In truth the Republican position is much worse than that. When they hem and haw about the so-called “Thurmond Rule,” they don’t wait around to give their listeners much context. And why would they? They’re the intellectual progeny of a man who, like them, put the nastiest form of racial politics above their constitutional duty.
The roots of the Thurmond Rule are familiar and embarrassing, especially to people like me, who’ve called Strom’s home state our own at one time or another. There are some parallels that shrink the distance between then and now. Chief Justice Earl Warren decided to retire from the Big Chair, leaving Lyndon Johnson to appoint one of the sitting justices to the important role of Chief. Johnson could have run again for the presidency, but by the time this choice was upon him, he’d decided against it. His time in the White House was coming to a close.
Thurmond might have been running out the clock until a Republican took the presidency. After all, Richard Nixon did win his race and take office a few months later. But there was something deeper, something much more sinister afoot during those dark days when the Thurmond Rule became a thing. Strom Thurmond opposed the appointment of Abe Fortas to the role of chief justice not because of congressional tradition or some misguided sense of constitutional duty. He did it because he was a racist who hated Lyndon Johnson for pushing through congress the Civil Rights Act. He did it, too, because Abe Fortas was a Jew who’d proven himself willing to uphold the ability of the federal government to impose equal rights requirements on the states. It was, more or less, precisely the sort of Supreme Court opposition that you’d expect from a man who slithered out of bed and in front of a microphone for no reason other than telling the world he didn’t want negroes using the same swimming pools as his children.
In an interview about Fortas, Thurmond was forthcoming with his criticisms:
Let’s cut through the noise a little here. When Thurmond says, “I am strongly opposed to turning loose criminals on technicalities,” he’s talking, at least in part, about Abe Fortas’s representation of Clarence Gideon of Gideon v. Wainwright fame. Fortas helped Gideon argue that the Sixth Amendment of the Constitution requires the State to provide a defendant with a competent attorney if the State wants to take that man’s freedom. Not having a lawyer was the “technicality” Thurmond railed so passionately against.
Thurmond also opposed Fortas’s fortitude on civil rights. It was, after all, the crown jewel of Thurmond’s illustrious resume as a passenger on the sinking ship. He perfected the art of losing a disgraceful battle in a disgraceful way. Fortas had upheld the ability of the federal government to tell the states that they must stop treating black people like animals.
And he hated Lyndon Johnson for doing the same. Thurmond defied Johnson when Johnson was Senate Majority Leader in 1957, when the Senate first took up the idea of civil rights legislation. Thurmond famously filibustered for 24 hours to try and stop that bill in an act that would be better described as “standing up for a day so that black folks might take a back seat for a lifetime” if we were prone to stripping away the mythology that seems to separate politics from the effects of policy-making. Make no mistake about it, when Strom Thurmond publicly opposed the very idea of elevating Abe Fortas, he did so with a disdain for racial progress. He was joined by a number of Republicans and Southern Democrats in doing the same. They no-doubt crowed to the media about the dangers of allowing a “lame duck” president might subvert the will of the people.
For almost a decade now, congressional Republicans have been doing their best to emulate legislators from a half-hundred years ago. They’ve obstructed the president at every turn, intent on delaying progress in a way that recalls the antics of Strom Thurmond. It shouldn’t surprise anyone that when a nation-changing nomination decision is in the pipeline, those same Republicans would revert back to the unwritten rules established by their intellectual father. The President is wrong. This rule is existent. It just comes with the slimy-side car of Strom Thurmond’s legacy. As it turns out, why Republicans today want to obstruct President Obama isn’t much different than why Thurmond fought Johnson 50 years ago. The ideological battlefield might have shifted from black water fountains to the fear of what a black president might give away to the people who earned the right to drink from those water fountains, but the motivations of the major players remain much the same.
