ABC27 FactChecker: Supreme Court justice nominations and confirmations

The debate is on over filling the sudden vacancy on the U.S. Supreme Court following Justice Antonin Scalia’s death. Republicans and Democrats alike are making statements that are not holding up under scrutiny from the ABC27 FactChecker.

During Saturday night’s debate, Republican Senator and presidential candidate Ted Cruz said, “Well, we have 80 years of precedent of not confirming Supreme Court justices in an election year.”


Justice Anthony Kennedy was confirmed to the Supreme Court in 1988, which was Reagan’s last year in office.

“Ted Cruz’s statement doesn’t seem to hold up,” Jim Lee of Susquehanna Polling and Research told ABC 27.

Lee says he also has issues with Republican Senator and presidential candidate Marco Rubio’s claims.

On Sunday, Rubio said, “It’s not just for the Supreme Court, even for the appellate courts, both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process.”

Research from the Brookings Institution shows George W. Bush made six Court of Appeals nominations during his final year. Bill Clinton made nine while Ronald Reagan made seven.

The statements from Rubio and Cruz imply that past presidents have deliberately withheld nominations for justices during that last year in the White House. ABC 27 could not find any evidence of such delays.

Additionally, there have been very few chances for presidents to make “lame-duck” nominations. Those who had the opportunity, like Franklin D. Roosevelt, did not delay; they went ahead and made the nomination.

“I think the Republicans aren’t right on this issue,” Lee said, after going through the information.

But the Democrats also have fact-checking issues.

Senate Minority Leader Harry Reid released a statement saying, “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat.”

Not exactly.

President Obama has 339 days left in office. The Supreme Court went 391 days without a complete roster when Abe Fortas resigned in May 1969. Harry Blackmun didn’t take his oath until June 1970.

That said, it usually takes a few months to confirm a nomination. That’s where Jim Lee says Republicans have a point.

“When you add that to how much time the president’s going to take to vet somebody, they’re already going to miss the lion’s share of all the heavy cases that will be decided,” Lee said. “So why not put it off another six months?”

The U.S. Constitution does not limit a president’s power to nominate Supreme Court justices, but it also does not limit the Senate’s power to reject nominations.


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