Stand up for the facts!

Our only agenda is to publish the truth so you can be an informed participant in democracy.
We need your help.

More Info

I would like to contribute

Amy Sherman
By Amy Sherman February 14, 2016

Rubio exaggerates in saying it's been 80 years since a 'lame duck' made a Supreme Court nomination

The death of U.S. Supreme Court Justice Antonin Scalia was a key topic at the start of the Republican presidential debate in South Carolina Saturday night.

Some of the candidates, including Sen. Marco Rubio, called on President Barack Obama to hold back on his replacement and leave the decision to the next president.

"I do not believe the president should appoint someone," said Rubio, a Florida senator. "And it's not unprecedented. In fact, it has been over 80 years since a lame-duck president has appointed a Supreme Court justice."

Let’s see what history shows about lame-duck presidential picks to the Supreme Court. We emailed spokespersons for Rubio and did not hear back.


Technically presidents don’t "appoint" a justice to the Supreme Court. They nominate someone who is then confirmed by the U.S. Senate.

There’s also the problem of whether Obama should be considered a lame duck or not. Some would say Obama isn’t a lame duck until after Election Day in November when his successor is chosen. Others might say all second-term presidents are lame ducks because they know they won’t serve again.

"The definition has evolved," said Larry J. Sabato, director of the Center for Politics at the University of Virginia. Decades ago, the lame-duck label was applied to a president after an election, but the term has changed over time to include any officeholder in his or her last term.

Either way, election-year Supreme Court nominations are rare.

Rubio’s statement prompted several comments on Twitter from those who noted a specific exception to his claim: the nomination of Justice Anthony Kennedy.

The Senate confirmed Kennedy 97-0 on Feb. 4, 1988. That was about 28 years ago -- not 80.

Featured Fact-check

Kennedy replaced Justice Lewis Powell, who retired, and was Reagan’s third nomination for the opening, after Robert Bork and Douglas Ginsburg. Powell announced his retirement in June 1987.

Reagan, who was in his second term, nominated Kennedy in November 1987. Kennedy was confirmed in February 1988. In November 1988, Reagan’s vice president George H.W. Bush won the presidency.

"The nomination actually wasn't in the election year, although the confirmation vote was," said Harvard law professor Mark Tushnet.

This came up minutes later in the debate, when U.S. Sen. Ted Cruz of Texas said, "We have 80 years of precedent of not confirming Supreme Court justices in an election year." Debate moderator John Dickerson of CBS News corrected Cruz by noting that Kennedy was confirmed in 1988.

We’re not certain which nomination Rubio was referring to 80 years ago. One possibility is when President Herbert Hoover nominated Benjamin Nathan Cardozo to fill a vacancy in February 1932, and Cardozo was confirmed that same month. Hoover then went on to lose re-election later that year.

"But Hoover was not a lame duck; he was eligible for re-election even though he lost," said Russell Wheeler, an expert on the courts at the Brookings Institution and former deputy director of the Federal Judicial Center.

As of 2010, the Senate has rejected 16 of 34 Supreme Court nominations because of opposition to the nominating president, according to a 2010 Congressional Research Service report. Seven of the rejected nominations were put forward by presidents in their final year in office after a new president had been elected but before the successor took over. But those were more than 80 years ago.

"Each of these ‘lame duck’ nominations transpired under 19th century presidents when the post-election period lasted from early November until early March," the report states.

Our ruling

Rubio said, "It has been over 80 years since a lame-duck president appointed a Supreme Court justice."

The most recent contradiction of this claim would be Reagan’s nomination of Kennedy. Kennedy was nominated in November 1987 and confirmed during Reagan’s final year of office in February 1988.

Reagan’s timeline doesn’t exactly line up with what Obama faces; Reagan had more time between his nomination and the end of his presidency. But it’s hard for us to see how Obama can be considered a lame duck but not Reagan. Both were second-term presidents who knew they would not serve again but did not yet know who their successor would be.

We rate this claim Mostly False.

Our Sources

U.S. Senate, Supreme Court nominations, 1789-2010

Congressional Research Service, "Supreme Court Nominations Not Confirmed, 1789-August 2010," Aug. 20, 2010

New York Times, "Senate, 97 to 0, Confirms Kennedy to High Court," Feb. 4, 1988

New York Times, "The death of Justice Scalia: Reactions and analysis," Feb. 13, 2016

Washington Post, "CBS News Republican debate transcript annotated," Feb. 13, 2016

Interview, Mark Tushnet, Harvard Law Professor, Feb. 13, 2016

Interview, Stephen Wermiel, American University law Professor, Feb. 13, 2016

Interview, Norman Ornstein, American Enterprise Institute scholar, Feb. 13, 2016

Interview, Russell Wheeler, Brookings Institution fellow and former deputy director of the Federal Judicial Center, Feb. 13, 2016

Interview, Larry Sabato, University of Virginia professor and Director, Center for Politics, Feb. 13, 2016

Browse the Truth-O-Meter

More by Amy Sherman

Rubio exaggerates in saying it's been 80 years since a 'lame duck' made a Supreme Court nomination

Support independent fact-checking.
Become a member!

In a world of wild talk and fake news, help us stand up for the facts.

Sign me up