By now, you have surely heard the Republicans’ baseless and self-serving claim as to why Obama shouldn’t nominate a replacement for the late Antonin Scalia on the Supreme Court. Exact phrasings vary, but the gist of it is that for 80 years, no lame duck president has appointed a Supreme Court justice successfully.
I know you’re probably thinking either this has already been debunked, or it’s so demonstrably wrong that there’s no way it’s going to fly beyond the next few days. If so, you’re right about the first point, but I wouldn’t count on the second. Remember “I invented the Internet.” Remember how easy it was to disprove, and yet that it did real and tangible damage before it was widely understood that Al Gore never said any such thing. Remember, too, that the usual suspects continued to cling to that claim years after it was debunked, knowing the truth would never get in the way of a winning soundbite.
That, among many other examples, is why we’ve got to take this latest absurdity seriously. Fortunately, it’s a fairly easy claim to lay waste to. So if you’ve got a family reunion coming up and your right-wing uncle is going to be there, here’s how you can break it down once and for all. (No, your uncle won’t listen – but others in earshot might. They’re the ones we need to fight for!)
First of all, an overview of exactly what was said. The claim appears to have originated with Senate Judiciary chair Charles Grassley, R-IA. On Saturday, just hours after Scalia’s death, Grassley said, “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.” He was following the lead of Senate Majority Leader Mitch McConnell, R-KY, who appears to have been the first to say the next president should choose Scalia’s successor; but it was Grassley who offered the actual rationale.
Within hours, Ted Cruz and Marco Rubio were repeating slight variations of the claim. On Meet the Press, Cruz said, "It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year." Then, at the latest Republican debate, Rubio morphed it into, “In fact, it has been over 80 years since a lame-duck president has appointed a Supreme Court justice."
So within 24 hours, we went from “the Senate doesn’t confirm nominees” to “no vacancy has been nominated and confirmed,” to “no lame-duck president has” nominated a justice. The distinction is not unimportant, as those are three different claims with different implications; but all are agreed on one magic number: 80 years. That’s a good place to start, because…
There was no significant change 80 years ago regarding Supreme Court nominations. This is partially because 80 years ago = 1936, when Franklin Roosevelt was up for election but, notwithstanding one poll so laughably flawed that it is still taught as a bad example today, he was in no danger of losing. So FDR was not a lame duck 80 years ago – or at any other time in his presidency. If we start the clock at 1936, there wouldn’t be a lame duck president for another sixteen years, until Harry Truman announced his retirement in early 1952. (Truman was the last president not subject to the 22nd Amendment, so although he was highly unpopular throughout his second term and unlikely to win again, he was eligible to run.)
Now, knowing what I (a former Iowan and a longtime political junkie) know about Chuck Grassley, I have no doubt whatsoever that he pulled the number 80 out of his ear. But if we were going to be generous and assume the claim was based on something, he might have been thinking of Benjamin Cardozo as the last Supreme Court justice nominated and confirmed in a presidential election year. That was in 1932, a bit over 80 years ago but not far off; but even if we overlook that minor error, there’s a much bigger one: Grassley said the practice was “not to confirm Supreme Court nominees” in an election year. That has in fact happened as recently as 1988, when the Senate (which by then included Grassley) confirmed Anthony Kennedy to the Supreme Court.
There’s a bit of an asterisk on that one in such that Kennedy was nominated in 1987; but that still doesn’t pass muster with Grassley’s claim that the Senate never confirmed nominees. He didn’t say anything either way about when they were nominated. By the most literal interpretation, it does pass Cruz’ test, since Kennedy was not “nominated and confirmed” in an election year; but that is clearly not what he meant (although I wouldn’t put it past him to argue that he did). As for Rubio, Cardozo doesn’t hold up at all as a benchmark: President Hoover nominated Cardozo in February 1932. He didn’t become a lame duck until he lost the election in November of that year.
So there is no reasonable basis for “the past 80 years” whatsoever.
There have been no Supreme Court nominations during the last year of a lame-duck president’s term in the past 80 years. The aforementioned Anthony Kennedy was confirmed during the last year of Reagan’s second term, but he was nominated slightly before then.
It’s only fair to note here that no one has actually said they were referring only to the last year of a president’s term; but it’s fair to say that has been implied, due to the talk of election years. The distinction between the last year and the entire last term is just as meaningless as the 80-year figure itself, since there is no fundamental difference whatsoever in the president’s position between those two periods. (The closest I can think of is that sometimes you have a sense of which party is going to win the next election; but this year we don’t really have that – and if anything, the evidence favors the Democrats.) Nevertheless, if you consider the overlap between Grassley’s, Cruz’ and Rubio’s versions of the claim, we’re left with the eighth year of a president’s term only. In the past 80 years, there has never been a nomination during that year. (This is in part because justices will often hold off on retiring until they can be sure their replacement will be of their own party – Byron White and Sandra Day O’Connor both did that – but that’s beside the point.) Even if we included Benjamin Cardozo, he was actually nominated and confirmed just before Herbert Hoover’s last year began. Two days before, to be exact: he was confirmed on March 2, 1932 while Hoover left office on March 4, 1933.
But what about presidential election years? That is what Grassley actually said, to be fair. In the past 80 years, there have been only three times a nomination came before the Senate in a presidential election year (including Kennedy in 1988, which as noted above was a carryover from 1987). All three were successful: Frank Murphy in 1940, William Brennan in 1956, and Kennedy in 1988. The latter two were confirmed by a Senate in the controlled by the opposite party. The closest Grassley’s claim comes to being true is the case of Lyndon Johnson’s nomination of Abe Fortas to Chief Justice and Homer Thornberry as a new associate justice in 1968, but that had nothing to do with any tradition of refusing to hold a vote because it was an election year. (If anything, it was because of an earlier generation of Chuck Grassleys and Ted Cruzes who saw an opportunity to tie Washington in knots until they could get a Republican president to name the next chief justice.)
So there you have it. No tradition of refusing to consider a lame-duck president’s nominees, whether you define lame-duck as the entire second term or only the final year; no change 80 years ago that we have respected ever since, and only one tangential precedent that was really just another case of right-wing obstructionism. Bring this to the table, and you can expect your uncle to dissolve into his usual whining about “Jesus, Reagan and motherhood!!!!” You’re welcome.