Republicans Don’t Have to Wait After Elections to Fill Justice Seat
The Claim
Because they thwarted the Obama administration from filling the seat vacated when Supreme Court Justice Antonin Scalia died in February 2016, Republicans are obligated to hold off on filling the Supreme Court seat held by Justice Ruth Bader Ginsburg until after the election.
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Sen. Lindsey Graham famously said in 2016: “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
However, Republicans, including Graham, are saying that circumstances are vastly different than they were during the last year of Obama’s administration. Namely, Republicans control both the presidency and the Senate. Democrats did not control the Senate in 2016 when Obama was thwarted in his efforts to fill the seat vacated by Justice Scalia.
Senator Ted Cruz weighed in on the issue, as well, by offering a brief history lesson.
Conservative commentator and Fox News host Mark Levin weighed in on the issue even before Ginsburg died, saying, “Historically when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.”
Misbar’s Analysis
Misbar’s investigation shows this claim to be false. In the wake of Ginsburg’s passing, it’s the nature of politics that both Democrats and Republicans will make whatever power grab they can — and the other side will condemn it. However, historical precedent shows that a party that controls both the presidency and the senate does not pass on an opportunity to fill a vacated Supreme Court seat during an election year. What’s more, Senate Majority Leader Mitch McConnell has made it clear that he intends to attempt to fill the vacated seat before Trump’s term is over. He explained the Senate’s 2016 move to block Obama’s appointment, stating that “no Senate has confirmed an opposite-party President’s Supreme Court nominee in a presidential election year.” As for Graham, specifically, one could certainly argue that he has shifted his position, based on his 2016 comment. However, he does not speak for the entire Republican Party — and he also cannot change the historical precedent that has been established over the past two centuries.
