A Project of The Annenberg Public Policy Center

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.

PresidentElection YearElection Result Nominee To ReplaceReason for VacancyNominatedConfirmed
William Taft1912Taft lost reelectionMahlon PitneyJohn Marshall HarlanHarlan died on Oct. 14, 1911Feb. 19, 1912March 13, 1912
Woodrow Wilson1916Wilson won reelectionLouis BrandeisJoseph Rucker LamarLamar died Jan. 2, 1916Jan. 28, 1916June 1, 1916
Woodrow Wilson1916Wilson won reelectionJohn ClarkeCharles Evans HughesHughes resigned June 10, 1916July 14, 1916July 24, 1916
Herbert Hoover1932Hoover lost reelectionBenjamin CardozoOliver Wendell HolmesHolmes retired Jan. 12, 1932Feb. 15, 1932Feb. 24, 1932
Franklin Roosevelt1940FDR won reelectionFrank MurphyPierce ButlerButler died Nov. 16, 1939Jan. 4, 1940Jan. 16, 1940
Dwight Eisenhower1956Eisenhower won reelectionWilliam J. BrennanSherman MintonMinton retired Oct. 15, 1956(Recess)(Recess)
Ronald Reagan1988Reagan left office in 1989Anthony KennedyLewis F. Powell Jr.Powell retired June 26, 1987Nov. 30, 1987Feb. 3, 1988
Barack Obama2016Obama left office in 2017Merrick GarlandAntonin ScaliaScalia died Feb. 13, 2016March 16, 2016Never 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.