There is a precedent for not nominating someone to the U.S. Supreme Court "in the middle of a presidential election."
Ten days after the death of U.S. Supreme Court Justice Antonin Scalia, House Speaker Paul Ryan entered the debate on whether Scalia’s successor should be chosen before or after Barack Obama leaves the Oval Office. The Democratic president has the right to submit a nominee before he departs in January 2017, said the Wisconsin Republican, appearing Feb. 23, 2016 on CNBC’s "Squawk Box." But the GOP-controlled Senate, Ryan added, has the right not to move the nomination forward and instead await a nomination from the next president. Then co-host Andrew Ross Sorkin asked: "Should you look at whoever gets nominated on the merits of who they are, or simply on the politics of the moment?" "We are in the politics of the moment, which is we are in the middle of a presidential election," Ryan said, referring to the early 2016 primaries and caucuses. "We’ve already had South Carolina, New Hampshire and Iowa. We’re knee-deep in a presidential election. "There’s a reason for having this tradition of not nominating somebody in the middle of a presidential election, because it gets so political. I agree with that precedent, and there is a precedent for that." It’s relatively rare for a Supreme Court vacancy to occur in the months leading up to a presidential election. But Ryan’s office could not provide any examples in which a president did not make a nomination during a presidential election year. We couldn’t find any, either -- though, to the contrary, we did find a number of instances in which such a nomination was made. The record Let’s note that when it comes to filling Supreme Court vacancies, presidents decide when to nominate, and the Senate decides when to consider the nomination. Often, the administration gets a read on where the Senate stands on confirming a nominee before putting someone forward. But formally, the timing for the first step is up to the president. We found five instances over roughly the past century in which there was a Supreme Court vacancy in a presidential election year and the president made a nomination. President Nominee Nomination Outcome Franklin Roosevelt (D) Frank Murphy, to replace Pierce Butler January 1940 Confirmed Herbert Hoover (R) Benjamin Cardozo, to replace Oliver Wendell Holmes February 1932 Confirmed Woodrow Wilson (D) Louis Brandeis, to replace Joseph Rucker Lamar January 1916 Confirmed Woodrow Wilson (D) John Clarke, to replace Charles Evans Hughes July 1916 Confirmed William Taft Mahlon Pitney, to replace John Marshall Harlan February 1912 Confirmed Technically, there was not a vacancy, but Democratic President Lyndon Johnson made two nominations in June 1968, five months before the election. Johnson nominated Abe Fortas, who was a sitting justice, to succeed Earl Warren as chief justice, after Warren indicated he wanted to retire. Fortas hit strong opposition in the Senate Judiciary Committee and in the face of a filibuster, he asked that his name be withdrawn. (The hearings uncovered questionable speaking fees Fortas received, and he resigned from the court in 1969.) Johnson had also nominated Homer Thornberry to take Fortas’ place on the court. But that nomination, too, was withdrawn, since Fortas was never elevated. In October 1956, Republican President Dwight Eisenhower did something even more extraordinary than making a nomination less than a month before election day. He put William Brennan directly on the court with a "recess appointment" to replace Sherman Minton. He then formally nominated Brennan in January 1957. A February 2016 article in the Cook Political Report by University of Georgia political scientist John Anthony Maltese notes there were also presidential election-year nominations made to the Supreme Court in the 1800s. Our rating Ryan said: "There is a precedent" for not nominating someone to the U.S. Supreme Court "in the middle of a presidential election.’ It’s rare for a Supreme Court vacancy to occur during a presidential election year -- the last time was in 1940, although there were also two election-year nominations in 1968. But we could find no instances in which a president faced with a Supreme Court vacancy during a presidential election year did not make a nomination. It occurred five times between 1912 and 1940, and each time the nominee was confirmed. We rate Ryan’s statement False.
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