Fact-checking Republican Statements about the Supreme Court

WASHINGTON, DC – JANUARY 29: Sen. Majority Leader Mitch McConnell is seen during a press conference on Capitol Hill, on Tuesday, January 29, 2019, in Washington, D.C. (Photo by Salwan Georges/The Washington Post via Getty Images)

With Ruth Bader Ginsburg’s recent passing, national attention turns to the empty seat she is leaving behind on the Supreme Court. A Republican-controlled Senate is poised to install Trump’s nominee as soon as he picks it, despite opposing such an appointment in 2016 because it was an election year.

Republican Senators are giving many justifications for their decisions to switch positions. Let’s see if their statements hold up to examination, shall we?

Mitt Romney: “The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”

Verdict: False.

Figuring out historical precedents is pretty straightforward; you just look through all of the formal Supreme Court nominations and the partisan history of the Senate and compare the two.

Out of the 20 nominees whose confirmations took place during an election year (I’m ignoring nominees who withdraw themselves), 5 of them were considered by opposition parties. Only 2 of these 5 were rejected, and one of them was Merrick Garland in 2016. If Romney was trying to justify the Garland nomination, he’s basing it on precedent where 75% of the election year nominees were accepted by the opposite party. That’s hardly a basis for “generally not confirming an opposing party’s nominee”.

The rest of what he says is true, though; out of the 15 election year nominees who faced their own party in the Senate, 13 were confirmed, and the other two were part of an extended battle that ended confirmation of a different guy.

Parties vote on nominees based on benefits to parties, not based on history.

Chuck Grassley: “In 2018…the American people reaffirmed their support for the President by expanding the Republican majority in the Senate, the body tasked with evaluating the President’s nominees to the court.”

Verdict: Misleading and false.

First of all, the “expanded majority” was an increase from 52 Republicans to 53 Republicans, just so we’re clear. That is a 1% difference – hardly anything to base arguments on.

But even more importantly, Grassley makes it sound as if the American people held a referendum on approving the President, but they did not. That’s not how the Senate works – it’s based on states, not a popular vote.

If you look at the total amount of votes cast for Senators in the 2018 elections, Democrats were ahead 58% to 38%. This actually lines up perfectly with Trump’s approval rating, which was 38% at the time, and also nicely with the House results, which gave Democrats 54% of the Representatives.

The American people did not “reaffirm their support” for Trump and the Republicans in 2018. They overwhelmingly affirmed their opposition.

Chuck Grassley: “While there was ambiguity about the American people’s will for the direction of the Supreme Court in 2016 under a divided government, there is no such ambiguity in 2020.”

Verdict: Half false, half true.

Grassley’s first statement is false; there was no ambiguity in 2016 – two-thirds of the country wanted the Senate to hold hearings.

His second statement is true, though he implies wrongly that popular opinion agrees with him. Right now, 62% of American adults, including many Republicans, feel that the vacancy should be filled by the winner of the election.

Grassley pretends to have the people on his side, but in reality he is just helping the Republicans hold on to whatever political power they can get, just like he’s been doing since 2016. Which reminds me…

Chuck Grassley, in 2016: “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back – to 1888 – in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.”

Verdict: Misleading, but technically true.

Supreme Court nominees have been confirmed in 1988, 1940, 1932, and 17 other election years. Reagan’s nominee in 1988 was confirmed “under divided government” by a Democratic-controlled Senate. Grassley’s statement hinges on the words “in that year” – both the 1988 and 1940 nominees were chosen due to vacancies that arose before the year began. So, technically, he’s right.

But basing an argument on such a specific technicality shows how weak the argument is. One could similarly say, “Not since 1888 has a nominee been confirmed by an opposition party after being nominated in an election year by a candidate who defeated a candidate who served two non-consecutive terms.” Is that really useful to know?

Want something that is useful to know? Not ever, not once in the history of the United States, has a supreme court nominee been voted on less than 3 months before the election – regardless of what party controls which body. If the Republicans do so now, it will be completely unprecedented.

Lindsey Graham: “Since the 1880s, no Senate has confirmed an opposite-party President’s Supreme Court nominee during an election year.”

Verdict: Entirely false.

Unlike Grassley, Graham apparently forgot to word this statement so that it rested on a technicality, and it is therefore false. The Democrats confirmed Reagan’s nomination, Justice Kennedy, in 1988.

Lindsey Graham: “Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there already is one set of rules for a Republican president and one set of rules for a Democrat president.”

Verdict: True, but not in the way he thinks.

Republicans love to bring up Bork as an example anytime Supreme Court hearings are mentioned, but every Supreme Court nominee – even Ginsburg, who was almost unanimously confirmed – faces intense questioning about everything they’ve ever written or said, and every opinion they hold on anything consequential. Sotomayor, for example, was labeled a “racist” by Republicans for saying that a Latina’s experiences gave her better judgment than a white male sometimes. (This compared to Bork‘s opposition to the Civil Rights Act and support of a poll tax.)

However, Graham might be right when he says there are different rules for Republicans than for Democrats; after all, only the Republican party has successfully confirmed nominees who were accused of sexual harassment and/or assault. (And any Democrat who takes five seconds to think about Trump’s record will tell you that the rules are different for him than for any Democratic president.)

Mitch McConnell: “We’re already hearing incorrect claims that there is not sufficient time to examine and confirm a nominee. We can debunk this myth in about 30 seconds. As of today, there are 43 days until Nov. 3 and 104 days until the end of this Congress.”

Verdict: Mostly true.

Here are the nomination times (the number of days from nomination to confirmation) for the last 10 nominees:

  • Kavanaugh: 88 days
  • Gorsuch: 65 days
  • Kagan: 87 days
  • Sotomayor: 66 days
  • Alito: 82 days
  • Roberts: 62 days total (he was already being considered for one position on the court when he was re-nominated for the Chief Justice position)
  • Breyer: 73 days
  • Ginsburg: 42 days
  • Thomas: 99 days
  • Souter: 69 days

Ginsburg, who was viewed as a moderate and confirmed with a 96-3 vote, was the outlier with only 42 days to confirm her. Most of the others fall between 60 and 90 days. This means if the Senate were to receive a formal nomination right now, on September 22nd, they would have a hard time finishing before the election.

Of course, McConnell has left the possibility of a “lame duck” confirmation vote – one that occurs after the election, but before the new Senate and President take office – wide open. Although “lame duck” appointments have happened 12 times, the last time such a vote happened was in 1881, and the last time a Senate and President got a nominee through to the Supreme Court before they lost control of both of the other branches was in 1861 (when Buchanan squeezed in a Democratic nominee days before Lincoln, a Republican, took office and the Civil War began).

CONCLUSION: The Republicans are wrong when they claim to be following precedent; they are, in fact, setting entirely new precedent by promising to vote with such little time left before the election. The Republicans are also wrong to suppose they have popular support to do this.