Fact Check: Ted Cruz Botches SCOTUS Nomination Precedent, Reversing Reality

The Senate confirmation process for Supreme Court nominee Amy Coney Barrett continues. At the hearings, Ted Cruz reversed reality of Supreme Court confirmation history to justify placing Amy Coney Barrett to fill the seat of Ruth Bader Ginsburg vacated when she passed away September 18, 2020.

Ted Cruz begins by establishing a population of election year vacancies to analyze:

The scenario of a Supreme Court vacancy occurring during an election year is not a new thing. It has occurred 29 times in our country’s history. Presidents have made nominations all 29 times. The precedent is quite unequivocal and uniform. When a vacancy occurs in an election year, the president makes a nomination…

Cruz splits the original population into two smaller populations sets, first, those where the president and the Senate majority are of the “same party“:

What has the Senate done? Again, the precedent is clear. Of those 29 [vacancies], 19 of those occurred when the president and the Senate were of the same party. Of those 19, the Senate confirmed 17 of them. The precedent is clear for a long, long time that if the president and senate are of the same party, the Senate, in all but extraordinary circumstances, confirms that nominee.

Cruz orders the vacancy created by the death of Ruth Bader Ginsburg be filled under his same party rule. But using his own numbers*, only 17 of 19 vacancies were filled. A rule with exceptions is not a rule we automatically follow. Cruz says nothing about those “extraordinary” exceptions.

Here is an historical rule with no exceptions: No vacancy created during election season, from beginning of summer through Election Day, has ever been filled before an election — a situation that occurred five times regardless of same party or not. The vacancy created by the death of Ruth Bader Ginsburg came very late in election season. Under this rule, Amy Coney Barrett should not be confirmed before Election Day.

See Republicans Violate The Constitution and Precedent To Pack the Supreme Court

Second, Ted Cruz moves onto his other population set, vacancies where the president and the Senate majority are of “different parties.” This is where reality reversal occurs:

How about when the Senate and the president are of different parties? That’s happened ten times. In that circumstance, the Senate has confirmed the nominee only twice. 2016 which our Democratic friends on the other side invoke, and I understand why they invoke — they were frustrated. 2016 was one of those instances in which president Obama was a Democrat, the Senate was in control of the Republic — Republicans. They had differing views on the kind of Justices that should serve on the Court. And so the election resolved those views.

Ted Cruz appears to be suggesting that the 2016 situation was good because of his different parties rule. 2016 different parties? Hold open. 2020 same party? Confirm. Just go ahead and confirm Amy Coney Barrett. Too bad that Democrats “were frustrated,” but rules are rules. Or at least that’s how it seems at first. Casual listeners take away a reverse reality.

Look again: “the Senate has confirmed the nominee only twice” and “2016 was one of those instances”? Wait a second. In 2016, the nominee was refused. Did he use the wrong word? What about all the “ten times” of vacancies during election years “when the Senate and the president [were] of different parties“?

Turns out, most of the ten vacancies were confirmed. Examples of election year “different parties” vacancies where nominations were confirmed:

  • Republican Ronald Reagan got Anthony Kennedy confirmed in 1988 despite a Democratic Senate.
  • Republican Richard Nixon got both William Rehnquist and Lewis Powell confirmed in 1972 despite a Democratic Senate.
  • Republican Dwight Eisenhower got William Brennan confirmed in 1957 to fill a 1956 vacancy despite a Democratic Senate.
  • Plus four more vacancies filled in earlier years despite different parties.

Cruz should have said “refused,” not “confirmed.” The Senate refused nominees “only twice.” And that word makes all the difference.

NO WONDER Democrats were “frustrated.” Democrats confirmed nominees of Republicans over and over and over again. But in 2016, when a seat became vacant February 13, early in the year, Republicans refused all consideration.

And now it is 2020 and Republicans break another rule. They cram through a nominee for a vacancy arising as late as September 18, which violates a historical rule with no exceptions: No vacancy created during election season, from beginning of summer through Election Day, has ever been filled before an election.

Republicans took an extra seat coming in, and now they take an extra seat going out.


* Numbers presented by Ted Cruz insignificant to this article may not be exactly correct.
See the official Ted Cruz page on this subject here.


TRANSCRIPT: TED CRUZ DISCUSSING NOMINATION HISTORY

The scenario of a Supreme Court vacancy occurring during an election year is not a new thing. It has occurred 29 times in our country’s history. Presidents have made nominations all 29 times. The precedent is quite unequivocal and uniform. When a vacancy occurs in an election year, the president makes a nomination. That includes Republicans. That includes Democrats. A total of 44 people have served as presidents of the United States. Twenty-two of them — half — have made a Supreme Court nomination during a presidential election year.

What has the Senate done? Again, the precedent is clear. Of those 29, 19 of those occurred when the president and the Senate were of the same party. Of those 19, the Senate confirmed 17 of them. The precedent is clear for a long, long time that if the president and senate are of the same party, the Senate, in all but extraordinary circumstances, confirms that nominee.

How about when the Senate and the president are of different parties? That’s happened ten times. In that circumstance, the Senate has confirmed the nominee only twice. 2016 which our Democratic friends on the other side invoke, and I understand why they invoke — they were frustrated. 2016 was one of those instances in which president Obama was a Democrat, the Senate was in control of the Republic — Republicans. They had differing views on the kind of Justices that should serve on the Court. And so the election resolved those views.

One example that has been pointed to — Senator Klobuchar just pointed to it — Senator Harris at the presidential debate previously pointed to it — was Abraham Lincoln. We are told that honest Abe, the founder of the Republican Party showed the example for why we should not proceed on this. I think it’s worth noting that that that [sic] example misses a lot of the story. So Abraham Lincoln in 1864. 27 days before the election Chief Justice Roger Taney passed away. Roger Taney by the way had been the author of the infamous Dred Scott decision, an abominable decision of the Supreme Court. So suddenly there was a vacancy 27 days before the election. Senator Klobuchar and Senator Harris before her both pointed out the fact that Abraham Lincoln did not make a nomination in those 27 days. What both of them omitted was — the Senate wasn’t here. The Senate had left. They had gone home. This was not the age of jet travel. This was not the age of commuting every weekend jumping on a United flight. They were gone and the Senate would not return until December. So there was no Senate physically present to confirm that nominee.

When the Senate did return in December, Abraham Lincoln nominated in December a Justice to fill that seat, Salmon Chase, which the Senate confirmed the next day. Twenty-four hours later they confirmed him. I would note also that Abraham Lincoln was in the midst of a presidential reelection … etc.