Ted Cruz is having a rough week, and now he just received a failing grade from a history professor.
Ever since Supreme Court Justice Antonin Scalia passed away on Saturday, Cruz has peddled the same lie over and over that “it has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
It’s an obvious attempt by Cruz and Republicans to keep President Obama from nominating a qualified individual that Senate Republicans would have to consider in confirmation hearings.
As a former clerk for the Supreme Court, you would think that Ted Cruz would know the history of the high court, but he clearly doesn’t make the grade.
And history professor Mark Byrnes at Wofford College in Spartanburg, South Carolina agrees.
In an article written for History News Network, Byrnes mercilessly fact-checked Cruz’ claim suggesting that it’s an American tradition that the Senate does not confirm judicial nominees during an election year.
Since Ted Cruz is always singing the praises of the Founding Fathers, Byrnes began by revealing that John Adams and George Washington both nominated Supreme Court Justices during their final months in office.
According to Byrnes,
In the final year of his presidency, George Washington had two nominations to the Supreme Court approved by the Senate. It was an election year and he was not running for reelection. It doesn’t get more “original intent” than that.
Adams’ case is even more relevant because he nominated John Marshall for Chief Justice in January 1801 after being defeated in the 1800 Election by Thomas Jefferson mere months before leaving office.
“Adams was a lame duck in the truest sense of the term—he was serving out the remainder of his term after being repudiated by the voters. Yet he did not hesitate to fill the vacancy in the Supreme Court, and Marshall was confirmed by a lame duck Senate,” Byrnes wrote.
Adams could easily have left the Supreme Court vacancy for Jefferson—who had already been elected, after all, and would take office in a matter of weeks—and didn’t. That seems as clear as it could be. The founders saw no impediment to a president in the final year–or even in the final weeks–of the presidency successfully appointing new justices to the Supreme Court.
Byrnes then tacked Cruz’s claim about the last 80 years, and of course, Cruz fails history again as Byrnes absolutely laid waste the alternative history in the Texas Senator’s head.
The facts are pretty simple. In the last 80 years there has only been one instance in which a president was in a position to nominate a justice in an election year and did not have the nominee confirmed. In 1968, LBJ’s nomination of Abe Fortas to be Chief Justice to succeed Earl Warren (and of Homer Thornberry to take the seat held by Fortas) was blocked in the Senate, but not because of some alleged “tradition.” Certainly there were Senators who wanted the next president to name a new justice. But the opposition to Fortas had everything to do with the specific nominee and specific objections to him (particularly charges of cronyism and inappropriate financial dealings). To the best of my knowledge, no one cited Cruz’s “tradition” to say it was not appropriate for Johnson to nominate someone, or that it would have been inappropriate to confirm anyone.
A second instance took place 28 years earlier. In 1940, FDR nominated Frank Murphy in January of that election year and he was confirmed that same month. There was no “tradition” blocking that election-year appointment. (This also shows that Cruz got the math wrong—this happened 76 years ago, not 80.)
So, there were two instances similar to the current situation in the last 80 years. In one case the nomination was rejected and in the other it wasn’t. To Ted Cruz, this constitutes “a long tradition that you don’t do this.”
In conclusion, Byrnes blasted Republicans for being cowards by hiding behind this “phony tradition,” and rightfully so. President Obama is still the commander-in-chief no matter how much Republicans pretend that he isn’t. And they have a constitutional duty to give any Obama nominee an up or down vote. Because anything less would betray everything the Founding Fathers stood for.
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