Herring correct about Supreme Court confirmations during election years

Virginia Attorney General Mark R. Herring dismisses the notion that the U.S. Senate shouldn’t fill the Supreme Court vacancy before voters head to the polls in November.

"Since 1900, six (U.S. Supreme Court) justices have been confirmed during election years, including Justice Anthony Kennedy, who was confirmed in the final year of the Reagan Administration," Herring and fellow Democratic attorneys general wrote in a March 10 letter to U.S. Senate leaders.

Herring’s letter was sent less than a week before President Barack Obama nominated U.S. Appeals Court Judge Merrick Garland to succeed Justice Antonin Scalia, who died Feb. 13.

We recently looked at another Herring claim that every nominee since 1875 had received a confirmation hearing, a statement we rated Mostly False. Here, we’re checking to see whether the attorney general was closer to the mark when he said there have been six justices confirmed during presidential election years since the start of the 20th century.

Michael Kelly, his spokesman, pointed us to several sources to back Herring’s statement, including a nearly identical claim on the White House website. He also pointed us to several other sources, including an article in The New York Times about presidential election year confirmations and the U.S. Senate’s historic listing of all Supreme Court vacancies.

We have some familiarity with the history of presidential election year confirmations going back to 1940, because we checked a statement by Rep. Bob Goodlatte, R-6th, who claimed that was the last time the Senate confirmed a Supreme Court nominee during a presidential election year. We rated that claim Half True.

Our colleagues at PolitiFact have looked at statements examining presidential year confirmations going back even further, to the early 1900s, which hews more closely to Herring’s claim.

We examined the record to see if Herring was correct.

The first Supreme Court confirmation in a presidential election year in the 20th century occurred in 1912. President William Howard Taft nominated Mahlon Pitney in February that year, and the Senate confirmed him the following month. In 1916, President Woodrow Wilson nominated Louis Brandeis and John Clarke to the high court, and both were confirmed that year.

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Bob Goodlatte

stated on February 15, 2016 in a TV interview.

"It’s highly unusual to have a Supreme Court confirmation in a presidential election year. The last one was 1940."

In 1932, President Herbert Hoover nominated Benjamin Cardozo to high court, and the Senate confirmed him within two weeks. In 1940, President Franklin D. Roosevelt nominated Frank Murphy to the court; the overwhelmingly Democratic-led Senate approved the choice less than two weeks later.

After Murphy’s elevation to the court, it would be nearly five decades before there was another justice confirmed in an election year. Anthony Kennedy, the justice Herring specifically cited in his letter, was confirmed in a 97-0 vote in the Democratically controlled Senate on Feb. 3, 1988. That was the final full year of President Ronald Reagan’s administration.

Republicans argue that Kennedy’s case isn’t comparable to the current Supreme Court vacancy, because Kennedy filled a seat that opened six months before the 1988 election year.

Reagan initially nominated Robert Bork to fill the vacancy left by retiring Justice Lewis F. Powell Jr., but the Senate rejected him in a vote that October. Reagan then announced he would nominate Douglas Ginsburg. But Ginsburg’s nomination was withdrawn after he acknowledged smoking marijuana as a college student and early in his teaching career. Finally, Reagan nominated Kennedy in November 1987.

Regardless of that debate, Kennedy’s elevation to the court indeed did occur during an election year.

We should note there have been some false starts in getting high court nominees through the Senate during a presidential election year. President Lyndon B. Johnson tried to elevate Justice Abe Fortas to chief justice and nominated Homer Thornberry to take Fortas’ place on the bench in 1968. But both nominations fizzled after the Senate filibustered the Fortas nomination.

Our ruling

Herring said there have been six presidential election year confirmations for Supreme Court seats going back to 1900.

There indeed were six justices confirmed during presidential election years in that time frame. We rate his claim True.