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Republicans running for president say President Barack Obama should let the next president nominate someone to replace U.S. Supreme Court Justice Antonin Scalia.
Texas Sen. Ted Cruz said on Meet the Press on Feb. 14 that it is a "long tradition" that a president in his final year in office should let his successor fill a spot on the nation’s highest court.
Meet the Press Host Chuck Todd asked Cruz if the Senate had an obligation to at least consider a nominee from Obama. Cruz said "not remotely."
"It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year," Cruz said. "There is a long tradition that you don't do this in an election year."
Cruz is correct in that it’s rare for a president to nominate and have confirmed a Supreme Court justice in an election year. But that’s more because of the rarity of filling Supreme Court slots than some "long tradition."
The Senate’s list of Supreme Court nominees shows precious few nominees and confirmations in the years when America elects a president.
President Lyndon B. Johnson nominated two people in 1968, his final year in office. One would have elevated sitting Justice Abe Fortas to the Chief Justice position vacated by Earl Warren. Fortas hit strong opposition in the Senate Judiciary Committee and in the face of a filibuster, he asked that his name be withdrawn. (The hearings uncovered questionable speaking fees Fortas received, and he resigned from the court in 1969.)
Johnson nominated Homer Thornberry in 1968 and was forced to withdraw that nomination, too.
So neither Thornberry nor Fortas was nominated and confirmed in the same year.
The next election-year nomination was in 1940, when President Franklin D. Roosevelt put forward Frank Murphy on Jan. 4, 1940. The Senate confirmed Murphy 12 days later on Jan. 16, 1940.
That took place 76 years ago, not 80 as Cruz said, but it’s pretty close.
Cruz chose his qualifying words carefully. By including both nominated and confirmed, he avoided the case of Justice Anthony Kennedy. President Ronald Reagan nominated Kennedy on Nov. 30, 1987, and the Senate confirmed him on Feb. 3, 1988. To be clear, presidents decide when to nominate, and the Senate decides when to confirm. Often, the administration gets a read on where the Senate stands before putting someone forward, but formally, the timing for the first step is up to the person in the Oval Office.
The experts we reached did have an issue with Cruz’s use of the word "tradition."
"This is entirely a matter of circumstance," said Sarah Binder, a political scientist at George Washington University. "Certainly not a norm or tradition by presidents refraining from nominating in a presidential election year or by senators refusing to consider such nominations."
In Cruz’s 80-year time frame, there were only two instances when vacancies coincided with presidential elections -- 1940 and 1968 as we just mentioned. Both times, the sitting presidents nominated a replacement.
Going back further, there were opportunities in 1932, two in 1916, and one in 1912. In every one of those cases, the president nominated someone and the Senate voted to confirm.
Editor Amy Howe wrote on SCOTUS Blog, "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."
Russell Wheeler is an expert on the courts at the Brookings Institution and former deputy director of the Federal Judicial Center. Wheeler told us that in the post-WWII period, the limited opportunities for election-year nominations lies primarily with the justices who exercise the choice to step down.
"Justices rarely leave active service in an election year, because they know, at least in the modern era of contentious confirmation battles, that their colleagues will be short staffed because of the unlikelihood of an election-year confirmation of a successor," Wheeler said. "Justices in the modern era rarely die in office."
Since the end of World War II, only four justices, including Scalia, died while serving. Wheeler said Scalia is the only justice who died in a presidential election year.
Cruz said there’s a long tradition stretching back 80 years of not nominating and confirming a Supreme Court justice in an election year.
A Supreme Court justice hasn’t been both nominated and confirmed in a presidential election year since 1940, 76 years ago.
But the notion that this is a "long tradition," is misguided. The fact is, vacancies in an election year are rare, especially in Cruz’s time frame. As such, it’s hard to argue that there is any tradition in filling seats.
Cruz’s statement is partially accurate but takes things out of context. We rate it Half True.
NBC News, Meet the Press, Feb. 14, 2016
U.S. Senate, Supreme Court Nominations, present-1789
SCOTUS Blog, Supreme Court vacancies in presidential election years, Feb. 13, 2016
CQ Press, Congressional Pressure on the Justices: Selection and Rejection, April 13, 2005
Federal Reserve Bank of Minneapolis, Fortas: The Rise and Ruin of a Supreme Court Justice, December, 1988
Email interview, Russell Wheeler, visiting fellow, Governance Studies, Brookings Institution, Feb. 14, 2016
Email interview, Sarah Binder, professor of political science, George Washington University, Feb. 14, 2016
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