Mitch McConnell exaggerates 'tradition' of not confirming election year Supreme Court nominees

Majority Leader Sen. Mitch McConnell, R-Ky., said his party is following a longstanding tradition by vowing not to consider any Supreme Court nominee until after a new president is inaugurated in 2017.

McConnell has said he won’t even meet with federal appeals court Judge Merrick Garland, President Barack Obama’s nominee to replace conservative Justice Antonin Scalia, who died in February — let alone hold hearings or a vote on Garland. Fox News Sunday host Chris Wallace asked McConnell if it would be hard to maintain such a rigid argument over the next several months.

McConnell responded by listing prior comments from several Democratic senators.

"We're following the Biden rule," he said, referring to comments made by Vice President Joe Biden in 1992. "And Biden was chairman of the Judiciary Committee in 1992, in presidential election year, he said the Senate should not act on filling a Supreme Court vacancy if it had occurred that year. Harry Reid when he was back in 2005 said the president nominates, but the Senate doesn't have to vote. Chuck Schumer, who will be the next Democratic leader, said in 2007 they wouldn't confirm. The Democrats were in the majority in the Senate, they wouldn't confirm a Bush appointment to the Supreme Court if one occurred within 18 months of a presidential election.

"So, all we're doing, Chris, is following a long standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year."

It is more than a stretch for McConnell to say it’s a "tradition" for the Senate not to fill a Supreme Court vacancy in an election year.

In the past century, there have been 25 presidential elections. Just four Supreme Court seats opened up in those election years. In three of those instances, the Senate confirmed the president’s nominee, and just once — the only election-year court opening in the past 80 years — did the Senate refuse a nominee.

So the scenario McConnell described has happened exactly once in the past century, in 1968, and that decision did not actually leave a vacancy on the court for any period of time.

"This is entirely a matter of circumstance," Sarah Binder, a political scientist at George Washington University, previously told PolitiFact. It’s "certainly not a norm or tradition by presidents refraining from nominating in a presidential election year, or by senators refusing to consider such nominations."

One-time 'tradition'

In June 1968, Chief Justice Earl Warren told President Lyndon Johnson he planned to retire. Johnson nominated sitting justice Abe Fortas to succeed Warren as chief. Fortas hit strong bipartisan Senate opposition and asked that his name be withdrawn for chief justice (though he stayed on the court as an associate justice). Johnson had also nominated Homer Thornberry to take Fortas’ place on the court. But that nomination, too, was withdrawn, as Fortas never became chief justice.

While there was some opposition to the Fortas nomination based on the fact that Johnson was a lame duck, Fortas’ failed confirmation primarily resulted from ethical questions over fees he received, his prior decisions and his closeness with Johnson. In any case, the Senate’s decision not to confirm didn’t actually leave a vacant seat on the court because Warren chose to stay on the bench.

Scalia’s seat, however, will remain vacant for as long as the Senate refuses to confirm a nominee. Without a ninth justice to break ties, it’s possible that many decisions will result in a 4-4 deadlock, which would mean the decisions of the lower court would stand.

There are more examples in the past century of the Senate confirming Supreme Court nominees for seats that open up in election years, though it is still a rare occassion. You have to go back about 80 years, as McConnell correctly noted on Fox News Sunday.

In 1932, President Herbert Hoover nominated, and the Senate confirmed, Benjamin Cardozo. In 1916, Woodrow Wilson nominated John Clarke and Louis Brandeis, and they both made it through the Senate.

McConnell’s talking point also ignores the two instances in the past century when the Senate confirmed Supreme Court nominees in election years, even though the seat opened up in the year prior. In 1988, the Senate confirmed Ronald Reagan’s nominee, Anthony Kennedy, though the seat became vacant in 1987. And in 1940, the Senate confirmed Franklin Roosevelt’s nominee, Frank Murphy, though the seat became vacant in 1939.

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A few 19th century presidents also nominated Supreme Court justices in election years, though not all of them were successful, according to a February 2016 article in the Cook Political Report by University of Georgia political scientist John Anthony Maltese.

Maltese found that since the country’s founding, soon-to-depart presidents have made 32 Supreme Court nominations. Those nominations came within a period ranging from within 365 days of a successor’s election through the successor’s inauguration. Of those 32 nominations, the Senate confirmed 18 — hardly proving that McConnell or his Democratic opponents have reason to claim tradition.

The record shows that Republicans’ inaction on Obama’s nominee is not rooted in some longstanding tradition, especially in the past century.

SCOTUSblog editor Amy Howe wrote, "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."

Our ruling

McConnell said Senate Republicans are "following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year."

McConnell’s use of the phrase "longstanding tradition" is misleading, as the Senate has chosen not to fill a Supreme Court seat that opens up during an election year just once in the past 100 years.

The reality is that, at least in recent decades, the Senate has rarely been presented with the opportunity to consider a Supreme Court nominee in an election year. It’s so rare that there’s no fully analogous scenario to compare with the current debate over filling Scalia’s seat.

McConnell’s statement is not accurate, so we rate it False.