The ongoing partisan feud over President Obama’s Supreme Court nomination Merrick Garland made its way to New Hampshire, where U.S. Senator Kelly Ayotte says the next president should select a justice instead.
State Republican chairwoman Jennifer Horn echoed Ayotte’s sentiment and issued a statement criticizing Obama’s move.
"Republicans have repeatedly stated that the American people deserve a voice in the process of selecting the next Supreme Court Justice, and I wholeheartedly agree," Horn wrote. "For more than eighty years, there has not been a nomination and confirmation of a Supreme Court Justice in a presidential election year. This is simply not the time to break with decades of bipartisan practice."
We were struck by Horn’s assertion that more than eight decades had passed since a president and U.S. Senate found themselves in this situation. We decided to take a look.
It turns out that an almost identical statement was made by presidential candidate and Texas Sen. Ted Cruz on the Feb. 14, 2016, edition of Meet the Press. There, he told host Chuck Todd that ""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."
As PolitiFact reported at the time, that’s largely true -- but not because of "tradition" (Cruz’s words) or "bipartisan practice" (Horn’s words). Instead, it’s because it’s simply rare for this combination of circumstances to occur.
"This is entirely a matter of circumstance," Sarah Binder, a George Washington University political scientist, told us in February. "Certainly not a norm or tradition by presidents refraining from nominating in a presidential election year or by senators refusing to consider such nominations."
When asked for background on Horn’s comment, state GOP spokesman Ross Berry pointed to Benjamin Cardoza, who was nominated to the court by President Herbert Hoover on Feb 15, 1932, and confirmed by the Senate on Feb 24.
But there’s a more recent case.
That came during the election year of 1940, when President Franklin Roosevelt picked Frank Murphy for the court. The nomination was Jan. 4, 1940, and the Senate approved him through a voice vote on Jan. 16. That’s 76 years ago, not "more than 80 years," as Horn said.
In 1956, President Dwight Eisenhower put William Brennan on the court through a recess appointment. Brennan was confirmed by the full Senate the next year. President Lyndon Johnson attempted to select a justice during the presidential election year of 1968, but both of his picks were turned aside.
And most recently, the Senate confirmed Justice Anthony Kennedy on Feb. 3, 1988 -- but President Reagan nominated him on Nov. 30, 1987.
This thumbnail sketch of the last eight decades clarifies both Cruz’s and Horn’s statements. First, it hasn’t been "more than 80 years" since a nomination and confirmation came in an election year. Roosevelt’s nomination of Murphy was 76 years ago.
Also, there simply haven’t been many cases of seats on the court coming open during election years. Russell Wheeler of the Brookings Institution, a former deputy director of the Federal Judicial Center, said that was likely a matter of choice by the justices themselves.
"Justices rarely leave active service in an election year, because they know, at least in the modern era of contentious confirmation battles, that their colleagues will be short staffed because of the unlikelihood of an election-year confirmation of a successor," Wheeler told us in February. "Justices in the modern era rarely die in office."
What’s more, it’s important to note that in each case in which a Supreme Court seat came open during an election year, the president at the time nominated a candidate for the seat.
To say Obama would be breaking from practice by nominating a justice isn’t accurate.
New Hampshire Republican chairwoman Jennifer Horn said that "For more than eighty years, there has not been a nomination and confirmation of a Supreme Court Justice in a presidential election year."
The time elapsed is actually 76 years, but Horn’s statement is otherwise accurate. Her following sentence, that this means there are "decades of bipartisan practice" of not filling seats, is more dubious. Few such positions have come open during that time and when they have, presidents have pushed forward with nominees.
On balance, we rate her statement Half True