Urging vote on Merrick Garland, congresswoman says 6 justices have been OK'd in presidential years

As President Barack Obama was nominating Merrick Garland to the U.S. Supreme Court, U.S. Rep. Gwen Moore argued that despite pushback from Republicans, there is precedent for a Supreme Court nomination to be approved during a presidential election year.

The Milwaukee Democrat urged in a tweet on March 16, 2016 that the U.S. Senate give Garland a 'fair hearing' and a timely vote on his nomination. Her claim was made in an image she attached, which said:

'6 justices confirmed in presidential election years since 1912.'

Virtually since the moment it was announced that Justice Antonin Scalia had died, Democrats and Republicans have clashed over when he should be replaced.

Democrats such as Moore and Wisconsin U.S. Sen. Tammy Baldwin contend that Obama should make an appointment, regardless of the fact the presidential election will be held in November 2016.

Republicans such as House Speaker Paul Ryan and U.S. Sen. Ron Johnson, both of Wisconsin, argue the Senate should not confirm any nominee until after Obama is replaced in January 2017.

So let’s see if Moore is right -- that six times since 1912, a justice nominated to the high court during a presidential election year has been confirmed by the Senate.

The nominee

According to The HIll: Garland, 63, is a 19-year veteran of the U.S. Court of Appeals for the District of Columbia Circuit; he currently serves as chief judge, a position he’s held since February 2013. He was nominated to that court by Democratic President Bill Clinton. He is sometimes described as a moderate, though some conservatives label him anti-gun.

In nominating Garland, Obama highlighted his work as a top Justice Department official in directing the prosecution of Timothy McVeigh and Terry Nichols for the 1994 Oklahoma City bombings. The president noted that Garland received past praise from John Roberts, the current chief justice, and GOP Sen. Orrin Hatch of Utah.

A partisan battle over the nomination is expected. Kentucky Republican Mitch McConnell, the Senate Majority Leader, reiterated immediately after Obama’s announcement that Scalia’s seat should not be filled until a new president is elected.

The history

As to Moore’s claim, we covered much of this ground in a March 2016 fact check when Ryan said: "There is a precedent" for not nominating someone to the U.S. Supreme Court "in the middle of a presidential election." We rated his statement False.

We found that going back to 1912, five nominees who were nominated during a presidential election year were confirmed:

President

Nominee

Nomination

Outcome

Franklin Roosevelt (D)

Frank Murphy, to replace Pierce Butler

January 1940

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Mark Pocan

stated on March 27, 2024 in Public appearance

“We passed 27 bills last year, which is the fewest since the Depression.”

Confirmed

Herbert Hoover (R)

Benjamin Cardozo, to replace Oliver Wendell Holmes

February 1932

Confirmed

Woodrow Wilson (D)

Louis Brandeis, to replace Joseph Rucker Lamar

January 1916

Confirmed

Woodrow Wilson (D)

John Clarke, to replace Charles Evans Hughes

July 1916

Confirmed

William Taft

Mahlon Pitney, to replace John Marshall Harlan

February 1912

Confirmed

As Moore’s tweet notes, current Justice Anthony Kennedy also was confirmed in a presidential election year -- in February 1988. President Ronald Reagan, a Republican, had nominated Kennedy in November 1987, a year ahead of the election, to replace Louis Powell, who retired.

It’s worth noting that in June 1968, five months before the presidential election, Democratic President Lyndon Johnson made two nominations, though there was not technically a vacancy, and neither were approved.

Johnson nominated Abe Fortas, who was a sitting justice, to succeed Earl Warren as chief justice, after Warren indicated he wanted to retire. 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 had also nominated Homer Thornberry to take Fortas’ place on the court. But that nomination, too, was withdrawn, since Fortas was never elevated.

We’ll also note that in October 1956, Republican President Dwight Eisenhower did something even more extraordinary than making a nomination less than a month before election day. He put William Brennan directly on the court with a "recess appointment" to replace Sherman Minton. He then formally nominated Brennan in January 1957.

Our rating

Moore said "six justices" on the U.S. Supreme Court have been "confirmed in presidential election years since 1912."

The number is correct.

Our rating is True.