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Ted Cruz on SCOTUS Vacancies

Sen. Ted Cruz said that “it has been 80 years since the Senate confirmed any judicial vacancy for the Supreme Court that occurred during a presidential election.” He’s (almost) right, but his claim lacks context.

It’s actually been 84 years since that happened. But going back to 1900, there have been only five judicial vacancies that occurred during a presidential election year, and in three of those cases, the president’s replacement nominee was confirmed by the Senate the same year, and one was filled by a recess appointment. The only election-year vacancy since 1900 that wasn’t filled happened last year when Justice Antonin Scalia died and the Senate refused to take up President Barack Obama’s nominee.

Cruz made the claim in an interview on Jan. 31, after President Donald Trump nominated Judge Neil Gorsuch to replace Scalia, who died Feb. 13, 2016. CNN’s Don Lemon asked Cruz if he thought that Senate Democrats might one day turn the tables on Republicans who refused to even hold a congressional hearing for Judge Merrick Garland, who Obama nominated to succeed Scalia in March. In his response, Cruz suggested that there is a history of not filling vacancies created during a presidential election.

Cruz, Jan 31: Well, look, anything is possible. You’re right. A lot of Democrats are angry. They’re angry at the results of the election and a number of them will point to Merrick Garland. You know, I’ll point out, Don, the situations are very, very different.

Justice Scalia passed away last year, right in the middle of a presidential election. It has been 80 years since the Senate has confirmed any judicial vacancy for the Supreme Court that occurred during a presidential election and the Republican majority in the Senate last year announced before Merrick Garland was nominated, before anyone was nominated, that we were going to keep this seat open and let the American people decide.

But as we pointed out when Cruz made a similar claim following Scalia’s death last year, Supreme Court vacancies rarely occur in a presidential year. And even when they have, the vacancies have always been filled. That is, until 2016.

Amy Howe, a lawyer and editor of SCOTUS Blog, detailed all instances of Supreme Court vacancies in election years going back to 1900. Her research shows that prior to Obama, only three presidents had Supreme Court vacancies occur in the same year as a presidential election: Woodrow Wilson, Herbert Hoover and Dwight Eisenhower.

Wilson actually had two nominees confirmed in 1916, including a replacement for Justice Charles Evans Hughes, a Republican, who resigned from the court in June to run for president against Wilson. And in 1932, Hoover had his replacement nominee confirmed just over a month after Oliver Wendell Holmes retired in January.

Eisenhower, however, filled his vacancy in October 1956 with the recess appointment of William J. Brennan Jr., who wasn’t officially nominated and confirmed until January 1957 — two months after Eisenhower was reelected president.

Here is the list of Supreme Court vacancies in an election year and whether they were filled, based on Howe’s story, as well as White House, Supreme Court and Senate records.

President Election Year Election Result  Nominee  To Replace Reason for Vacancy Nominated Confirmed
William Taft 1912 Taft lost reelection Mahlon Pitney John Marshall Harlan Harlan died on Oct. 14, 1911 Feb. 19, 1912 March 13, 1912
Woodrow Wilson 1916 Wilson won reelection Louis Brandeis Joseph Rucker Lamar Lamar died Jan. 2, 1916 Jan. 28, 1916 June 1, 1916
Woodrow Wilson 1916 Wilson won reelection John Clarke Charles Evans Hughes Hughes resigned June 10, 1916 July 14, 1916 July 24, 1916
Herbert Hoover 1932 Hoover lost reelection Benjamin Cardozo Oliver Wendell Holmes Holmes retired Jan. 12, 1932 Feb. 15, 1932 Feb. 24, 1932
Franklin Roosevelt 1940 FDR won reelection Frank Murphy Pierce Butler Butler died Nov. 16, 1939 Jan. 4, 1940 Jan. 16, 1940
Dwight Eisenhower 1956 Eisenhower won reelection William J. Brennan Sherman Minton Minton retired Oct. 15, 1956 (Recess) (Recess)
Ronald Reagan 1988 Reagan left office in 1989 Anthony Kennedy Lewis F. Powell Jr. Powell retired June 26, 1987 Nov. 30, 1987 Feb. 3, 1988
Barack Obama 2016 Obama left office in 2017 Merrick Garland Antonin Scalia Scalia died Feb. 13, 2016 March 16, 2016 Never received a confirmation hearing

The chart shows all vacancies created in an election year during the twentieth century were filled. That streak ended with Garland’s nomination last year.