Asked during the CNN town hall whether President Obama should nominate and have a justice appointed, Senator Marco Rubio (R-FLA) repeated the fundamentally misleading Republican talking point that there is an 80 year tradition not to appoint in the last year of a presidency.
Rubio said, “Number one, there is about an eighty-year precedent on this that in the last year of a president’s term, the Senate usually doesn’t move forward, not just on Supreme Court nominations, but also appellate judges because you’re appointing someone to a lifetime appointment to the Supreme Court theoretically. The Supreme Court can function with eight justices.”
Wrong, wrong and wrong. The Court can’t function as intended with only eight justices.
There is no 80 year precedent for the senate not to move forward on Supreme Court nominations. That’s absurd.
Politifact has fact-checked this several times and yes, it’s still inaccurate and misleading. The latest round, they found, “The Republicans have repeated one specific verse in their chorus against President Barack Obama’s expected Supreme Court nomination following the death of Justice Antonin Scalia. It sounds something like this: There hasn’t been a Supreme Court vacancy filled in an election year in 80 years. Sometimes this talking point conflates nomination with confirmation.”
But, the note, this “‘Tradition’ not consistent with judicial history” and “the notion of an 80-year precedent is fundamentally misleading.”
The last time a justice was both nominated and confirmed in an election year happened 84 years ago. Benjamin Cardozo was nominated by President Herbert Hoover on Feb. 15, 1932, and confirmed by the Senate nine days later. (Hoover lost his reelection bid that year.)
But the notion of an 80-year precedent is fundamentally misleading.
“This is entirely a matter of circumstance,” said Sarah Binder, a political scientist at George Washington University. “Certainly not a norm or tradition by presidents refraining from nominating in a presidential election year or by senators refusing to consider such nominations.”
While it is rare to fill a Supreme Court vacancy while a presidential race is happening, that’s more because seats on the bench are seldom empty in election years.
As historians and reality have already pointed out many times, Republicans are taking data they moved around until they could present it in a fundamentally dishonest way in order to justify trying to strip the voters of their votes for this President.
The talking point that there is an 80 year precedent or tradition is fundamentally misleading, so says Politifact. That means that Marco Rubio is fundamentally misleading voters. And the thing is, Rubio has already been fact-checked by Politfact twice on this issue before the town hall tonight. Rubio was mentioned in the fact check quoted above and he had one dedicated to him on this issue on the 14th: “Rubio exaggerates in saying it’s been 80 years since a ‘lame duck’ made a Supreme Court nomination.”
Rubio’s talking point has already been debunked by reality and fact checkers over and over again, but he said it again anyway. With a swagger that suggests he is quite comfortable refusing to deal with reality.
Ms. Jones is the co-founder/ editor-in-chief of PoliticusUSA and a member of the White House press pool.
Sarah hosts Politicus News and co-hosts Politicus Radio. Her analysis has been featured on several national radio, television news programs and talk shows, and print outlets including Stateside with David Shuster, as well as The Washington Post, The Atlantic Wire, CNN, MSNBC, The Week, The Hollywood Reporter, and more.
Sarah is a member of the Society of Professional Journalists.