Sens. Marco Rubio and Ted Cruz distort the history of Supreme Court appointments in arguing that President Obama should not be allowed to fill the vacancy left by the death of Supreme Court Justice Antonin Scalia.
They say there’s “a long tradition” and historical “precedent” for presidents not to fill a Supreme Court vacancy in their last year in office or during an election year. But a lack of opportunity — rather than a long-standing tradition — has been the reason most previous presidents did not make such appointments:
- Cruz said “it has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year,” citing this as a “long tradition.” Cruz is close (it has been 76 years). But until now only six presidents since 1900 had outstanding court vacancies in an election year, and in every case the vacancy was filled.
- Rubio claimed there is a “precedent” of more than 80 years that says “you do not have a lame-duck president make a lifetime appointment to the highest court” in his last 11 months. Obama is the only lame-duck president in the last 116 years who had a vacancy suddenly occur in his final year in office.
Scalia’s Death and Political Fallout
The unexpected death of Supreme Court Justice Antonin Scalia, who was found dead at a resort in Texas on Feb. 13, immediately triggered a partisan dispute over his possible replacement. On the day of Scalia’s death, Senate Majority Leader Mitch McConnell issued a statement saying “this vacancy should not be filled until we have a new President.”
Obama responded by saying the “Constitution is pretty clear about what is supposed to happen,” saying he will nominate someone and he expects the Senate will consider his nominee. “Historically, this has not been viewed as a question,” Obama said.
We should start by saying the Senate under the Constitution has the power of advice and consent on presidential nominees, and Senate leaders in both parties, particularly in recent years, have been accused of delaying and even denying judicial appointments in election years when the other party controls the White House, as recapped in reports by the nonpartisan Congressional Research Service in 2008 during Bush’s final year in office and in 2012 during Obama’s reelection campaign.
But the election-year judicial disputes are usually over circuit and district court judges. It is rare that Supreme Court vacancies occur in an election year — let alone the final year of a presidency.
Nevertheless, Rubio and Cruz made broad claims about Supreme Court precedents and traditions on the Sunday talk shows.
Cruz on “Meet the Press,” Feb. 14: It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.
Rubio on “Face the Nation,” Feb. 14: The Senate is not moving forward on it until after the election. Senator McConnell, the majority leader, has already made that clear. And I agree with that. There’s been precedent established over 80 years that, in the last year, especially in the last 11 months, you do not have a lame-duck president make a lifetime appointment to the highest court on the land.
Rubio on “State of the Union,” Feb. 14: The precedent’s been set. It’s been over 80 years now since, in the last year of the last term of a sitting president, there isn’t Supreme Court nominees, 80 years. And there’s a reason for that. And the reason is that the next president should have a chance to fill that void, not someone who’s never going to answer to the electorate again.
Let’s take Cruz’s statement first.
He’s right — or close to right — that it has been 80 years since a Supreme Court nominee was “nominated and confirmed in an election year.” It has actually been 76 years. But here’s the missing context: There have been only six outstanding court vacancies in an election year since 1900, and in every case the vacancy was filled.
Supreme Court ‘Precedent’
Amy Howe, a lawyer who is the editor of SCOTUS Blog, detailed all instances of Supreme Court vacancies in election years going back to 1900. A review of her research shows that there have been only six presidents in the last 116 years who had court vacancies remaining in an election year: William Taft, Woodrow Wilson, Herbert Hoover, Franklin D. Roosevelt, Dwight Eisenhower and Ronald Reagan. Only one (Reagan) wasn’t running for reelection.
Four of those six presidents had their choices — in the words of Cruz — “nominated and confirmed in an election year.” They were Taft, Wilson, Hoover and Roosevelt. (Wilson actually had two nominated and confirmed in an election year.) The last was Roosevelt in 1940 when he nominated Frank Murphy on Jan. 4, 1940, to replace Pierce Butler, who died Nov. 16, 1939. Murphy was confirmed Jan. 16, 1940, by a friendly Democratic Senate. That’s 76 years ago, close to what Cruz said.
As we have written, the Senate in an election year confirmed President Reagan’s nomination of Anthony Kennedy to the Supreme Court in his last year in office in 1988. But in that case, the vacancy occurred in June 1987 when Lewis F. Powell Jr. retired, so he does not meet Cruz’s standard of “nominated and confirmed in an election year.”
Eisenhower filled his vacancy with a recess appointment: William J. Brennan Jr. took the oath of office on Oct. 16, 1956, but Eisenhower didn’t make the nomination until Jan. 14, 1957, after winning reelection.
Here is the list of Supreme Court vacancies in an election year and how they were filled, based on Howe’s story, Senate records, the White House website, Supreme Court website and congressional biography website:
| President | Election Year | Election Result | Nominee | To Replace | Reason for Vacancy | Nominated | Confirmed |
| William Taft | 1912 | Taft lost reelection | Mahlon Pitney | John Marshall Harlan | Harlan died on Oct. 14, 1911 | Feb. 19, 1912 | March 13, 1912 |
| Woodrow Wilson | 1916 | Wilson won reelection | Louis Brandeis | Joseph Rucker Lamar | Lamar died Jan. 2, 1916 | Jan. 28, 1916 | June 1, 1916 |
| Woodrow Wilson | 1916 | Wilson won reelection | John Clarke | Charles Evans Hughes | Hughes resigned June 10, 1916 | July 14, 1916 | July 24, 1916 |
| Herbert Hoover | 1932 | Hoover lost reelection | Benjamin Cardozo | Oliver Wendell Holmes | Holmes retired Jan. 12, 1932 | Feb. 15, 1932 | Feb. 24, 1932 |
| Franklin Roosevelt | 1940 | FDR won reelection | Frank Murphy | Pierce Butler | Butler died Nov. 16, 1939 | Jan. 4, 1940 | Jan. 16, 1940 |
| Dwight Eisenhower | 1956 | Eisenhower won reelection | William J. Brennan | Sherman Minton | Minton retired Oct. 15, 1956 | (Recess) | (Recess) |
| Ronald Reagan | 1988 | Reagan left office in 1989 | Anthony Kennedy | Lewis F. Powell Jr. | Powell retired June 26, 1987 | Nov. 30, 1987 | Feb. 3, 1988 |
As the chart shows, all vacancies in an election year in the last 116 years were filled.
Howe, Feb. 13: The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
Howe added, “The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant” in an election year.
As for Rubio, his statements deal with an even smaller universe of Supreme Court vacancies: a president serving in his last year in office who suddenly has a Supreme Court opening to fill.
On “Face the Nation,” Rubio said he agrees with Senate Republican Leader McConnell that the Senate should not consider an Obama nominee to replace Scalia. “There’s been precedent established over 80 years that, in the last year, especially in the last 11 months, you do not have a lame-duck president make a lifetime appointment to the highest court on the land,” Rubio said.
In fact, this is the first time in at least 116 years that a Supreme Court vacancy occurred in a lame-duck president’s final year in office. The chart above also shows there was only one lame-duck president — Reagan — who had a vacancy to fill, but that vacancy occurred when Reagan had more than a year in office. Rubio said the precedent extends only to a president’s last year “especially in the last 11 months,” which would only cover Obama.
Howe’s article also references the unusual case of President Lyndon B. Johnson — who so far has been the only lame-duck president in 116 years to make a Supreme Court nomination in his final year in office.
Johnson announced on March 31, 1968, that he would not run for reelection. Three months later, on June 26, 1968, Johnson nominated a sitting associate justice, Abe Fortas, to replace Chief Justice Earl Warren, who had expressed a desire to retire. But Warren’s retirement “came with strings,” as detailed by Humanities magazine, a publication of the National Endowment for the Humanities.
Humanities, September-October 2009: Warren’s retirement, however, came with strings: His resignation would not become effective until “such time as a successor is qualified.” To replace Warren, Johnson wanted to elevate Associate Justice Abe Fortas to chief justice and appoint Homer Thornberry to fill the empty associate justice chair. Both men were liberal and would carry on the work of the Warren Court.
The announcement was met with “howls of outrage” from senators on both sides of the aisle who regarded Warren’s conditions as “an affront to the chamber’s Constitutional right to advise the president on nominees,” Humanities senior writer Meredith Hindley says. (More on the history of the “advice and consent” process later.)
Johnson was forced to withdraw the nominations in October 1968, and Warren remained on the court for another year, retiring in 1969. It’s important to note that there was no vacancy at any point in Johnson’s last year, unlike the situation that now confronts Obama.
On CNN, Rubio repeated his claim about the precedent being set more than 80 years ago, and this time gave a reason. He said “there isn’t Supreme Court nominees” in the last year of a president’s final term because “the next president should have a chance to fill that void, not someone who’s never going to answer to the electorate again.” That’s wrong. There “isn’t Supreme Court nominees” — meaning nominations — in “the last year of the last term of a sitting president” because it hasn’t happened, at least since 1900.
It’s also worth noting that the Senate’s “advice and consent” process has changed dramatically during the 116 years that Howe covers in her article.
As the Humanities article notes, the Senate Judiciary Committee didn’t hold a hearing on a Supreme Court nominee until 1925, and then didn’t do so again until 1955. “Starting with John Harlan in 1955, all nominees appeared before the Senate Judiciary Committee,” Hindley wrote.
Cruz and Rubio are free to express their opinion that the Senate should not take up a Supreme Court nominee in Obama’s last year, just as Obama is free to disagree. But the senators twist the facts when they cite “precedent” and “a long tradition” to support their position.