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Fact Checker: Grassley and Hogg on Supreme Court Nominations

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Published: Feb. 20, 2016 at 11:32 PM CST
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Introduction

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.” - U.S. Sen. Chuck Grassley, R-Iowa.

“The longest confirmation process since 1980 was 109 days. No vacancy due to the death of a justice has been left unfilled for more than six months since at least 1920.” - State Sen. Rob Hogg, D-Cedar Rapids.

Source of claims: Grassley’s statements have been posted on his website since shortly after Justice Antonin Scalia died Feb. 13. The comments by Hogg, who is challenging Grassley for his Senate seat, were posted on his Facebook page.

Analysis

These claims get to the heart of a partisan dispute about filling Scalia’s seat on the U.S. Supreme Court.

Republicans claim the precedent in an election year is to wait for the next president to replace a justice, while Democrats argue no precedent dictates a sitting president, in this case Barack Obama, shouldn’t fill a vacancy on the Supreme Court.

Two key elements are embedded in the Hogg and Grassley claims: what happens when a justice dies in office; and second, what happens when a seat is vacant in a presidential election year.

In the first 110 years of the court, about two thirds (38) of justices appointed before 1900 died in office, but since then only about a third of justices have died while on the bench, according to a faculty blog of the Marquette University Law School.

Scalia is just the second justice, also including William Rehnquist in 2005, to die in office in the past 60 years. Since 1920, nine justices, including Scalia, have died in office, but Scalia is the first in an election year.

The U.S. Senate maintains data on Supreme Court nominations and the Supreme Court Historical Society also has a repository of service.

Amy Howe on SCOTUSblog, a respected source on the Supreme Court, identified three justice replacements occurring in election years since 1920: Justices Benjamin Cardozo in 1932, Frank Murphy in 1940 and Anthony Kennedy in 1988.

Also, according to Howe, President Dwight D. Eisenhower made a recess appointment of William J. Brennan but did not formally nominate him to replace Sherman Minton, who retired in October 1956, until after re-election in the 1956 general election. In 1968, the Senate blocked President Lyndon B. Johnson’s nomination of sitting Justice Abe Fortas to replace retiring Chief Justice Earl Warren. However, Warren decided to keep his seat and Fortas remained an associate justice.

So, how does all of this match up to the claims?

Grassley’s 80 years of “standard practice” of not nominating and confirming justices in election years would date to 1936.

Since then, there are two examples of confirmations in election years — Murphy in 1940 and Kennedy in 1988 — and one example of an election-year nomination that was rejected — Johnson’s failed nomination of Fortas in 1968. And there’s one example of a president postponing a nomination until after an election — Eisenhower in 1956.

Murphy was both nominated and confirmed in the 1940 election year, but Grassley spokeswoman Beth Levine took issue with a Kennedy comparison.

“The key is that Justice Kennedy was confirmed in a presidential election year, but he was nominated in the previous year, and only after the Senate had rejected two other nominees,” she wrote in an email.

The Democratic Senate confirmed Kennedy 65 days after being nominated by Republican President Ronald Reagan on November 30, 1987, to replace Lewis Powell, who retired in June 1987. Kennedy’s nomination came after Robert Bork was rejected by the Senate, and Douglas Ginsburg was announced but never submitted.

Now let’s look at Hogg’s claims about days for confirmations and vacancy gaps following a death.

According to the U.S. Senate data, the U.S. Senate took 109 days before rejecting Bork in 1987, which was the longest amount of time for a decision. Among confirmations, the longest was 99 days to confirm Justice Clarence Thomas in 1991.

On Hogg’s second claim, the longest vacancy following the death of a justice, was 174 days after Fred Vinson’s death on Sept. 8, 1953, to the appointment of Warren on March 1, 1954, which is less than six months.

Conclusion

Hogg’s data checks out. No more than 109 days passed for a confirmation process, and a seat on the bench has not been vacant for more than six months following a death.

Fact Checker scores Hogg’s claims an A.

Grassley’s claim is a little more nuanced because so few examples exist of court vacancies in election years and deaths on the bench in the last 80 years.

“The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election,” Howe wrote in her blog.

Russell Wheeler, a Brookings Institute scholar, calls the “standard practice” claim disingenuous. Justices generally time retirements outside election cycles to avoid partisanship, and deaths in the modern era haven’t fallen in election years, he said.

“There’s not really a parallel,” Wheeler said. “It’s a little disingenuous to say there’s never been a seat filled during an election year because none occurred during election year.”

Given the lack of precedent and the fact that Murphy was nominated and confirmed within Grassley’s 80 year window, at minimum Grassley is misleading. Fact Checker scores Grassley’s claim a D.

CRITERIA

The Fact Checker team checks statements made by an Iowa political candidate/office holder or a national candidate/office holder about Iowa, or in advertisements that appear in our market. Claims must be independently verifiable. We give statements grades from A to F based on accuracy and context.

If you spot a claim you think needs checking, email us at factchecker@thegazette.com. This Fact Checker was researched and written by B.A. Morelli.