The lie that began with Sen. Chuck Grassley, that "it's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year" has taken on a life of its own, mostly perpetuated by presidential candidates Ted Cruz and Marco Rubio. It's a lie that NBC's Chuck Todd wasn't up to debunking on Sunday's Meet the Press.
Here's Cruz:
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.
Here's Rubio:
Because actually, it's not just for the Supreme Court, even for appellate court, it's been 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. You basically say, "At this point, with a few months left in your term, no accountability from the ballot box and the appointment you're going to make, on a lifetime—
Cruz repeated it on ABC's This Week, with a slight, extremely oily tweak, when George Stephanopoulos reminded him that Kennedy was confirmed in February 1988. An election year.
CRUZ: George, the Senate has not confirmed a nominee that was named in the final year, an election year, in 80 years. This is a lame duck president. And, by the way, the only reason Anthony Kennedy was nominated that late is that Democrats in the Senate had gone after and defeated two previous nominees, Robert Bork, which set a new standard for partisan attacks on a nominee, and Doug Ginsburg.
See how he weaseled that talking point around? Now it's that the Senate hasn't confirmed someone named in an election year. Rubio, not being as bright as Cruz, stuck with the old "I'm not saying the president can't make an appointment. I'm saying we're not going to move forward on it in the Senate. And that has been the practice now […] for over 80 years." He repeated that on CBS's Face the Nation, and on CNN. He stuck with that until, remarkably, Fox News's Chris Wallace called him on it, reminding Rubio that the Kennedy confirmation happened in an election year. Oh, but that's all different, says Rubio, because the nomination came at the end of Reagan's seventh year and not the beginning of his eighth. Thus, President Obama only has "about 11 months" left in office and the Kennedy case doesn't count.
None of this weaseling makes the "80 year precedent" lie true as SCOTUSblog has demonstrated. Nor does it make any difference to the Constitution, because as Sen. Elizabeth Warren says there isn't "a clause that says '… except when there's a year left in the term of a Democratic president.'"