Shortly after Supreme Court Justice Antonin Scalia died last weekend, Texas Sen. Ted Cruz turned to U.S. history to explain why the Senate should block any nominee President Obama puts forward, regardless of his or her résumé.
“We have 80 years of precedent of not confirming Supreme Court justices in an election year,” Cruz said on stage at Saturday’s Republican debate in Greenville, S.C.
“There is a long tradition that you don’t do this,“ he added the next day on NBC’s “Meet the Press.”
Cruz’s argument — which Florida Sen. Marco Rubio has also been making — is bunk. First of all, the Senate confirmed a Supreme Court justice in an election year less than three decades ago: Justice Anthony Kennedy, a Ronald Reagan nominee, who was approved by the Senate on Feb. 3, 1988, nine months before Election Day. And even if you rule out Kennedy because Reagan originally nominated him the previous November, Cruz’s 80-year time frame still doesn’t hold up: Justice Frank Murphy was selected by Franklin D. Roosevelt on Jan. 4, 1940, and confirmed 12 days later.
That said, Cruz is correct that it’s rare for a president to nominate — and to see the Senate confirm — a Supreme Court justice in an election year. But he’s wrong about the reason why this is rare. It’s not because of some sort of “long tradition” of presidential passivity or Congressional obstruction. Instead, it’s because Supreme Court justices almost never vacate their seats the same year as an election, either willingly or unwillingly, like Scalia.
Over the last eight decades, in fact, it’s only happened twice: in 1940, as noted above, and several elections later, in 1968. Only in 1968 did the president’s picks fail. Every other time a Supreme Court seat has opened up in an election year since the start of the 20th century — once in 1932, twice in 1916, once in 1912 — the president has nominated a replacement and the Senate has voted to confirm.
As PolitiFact puts it, “vacancies in an election year are rare, especially in Cruz’s time frame. As such, it’s hard to argue that there is any tradition in filling seats.”
In short, Cruz’s history lesson is misleading. But that doesn’t mean history is useless here. The past can actually tell us quite a lot about Obama’s chances of getting his replacement for Scalia through the Senate — if you know where to look.
In 1993, P.S. Ruckman Jr., a political scientist then at Northern Illinois University, published a paper in the Journal of Politics titled “The Supreme Court, Critical Nominations and the Senate Confirmation Process.” All of a sudden, 23 years later, it’s very interesting reading.
In his paper, Ruckman reviews the record on Supreme Court nominations and explores several factors that have influenced their outcomes. All in all, more than 150 people have been nominated to the court since 1789 — and more than 19 percent have not been confirmed by the Senate. Most of these failed nominations never even made it to the Senate floor for a vote; instead they involved indefinite postponements, total Senate inaction or withdrawals by the president. No other national office has such a high rejection rate. In historical terms, it’s relatively common for a Supreme Court nominee to fail.
The more pressing question is why. According to Ruckman, timing is important: Almost half of the unsuccessful Supreme Court candidates in U.S. history have been nominated in the last year of a president’s term. That’s one mark against whomever Obama selects. The makeup of Congress plays an even bigger role: Nearly 60 percent of failed nominations have occurred when one party controlled the presidency and the other controlled the Senate (which, of course, is the case right now). That’s another problem for Obama.
Yet the president’s biggest challenge may be the overall partisan composition of the court — or, more specifically, how his nominee would likely alter it. All of the factors mentioned above had been studied before. What no one had bothered to look at until Ruckman came along was a factor that he called the “critical nomination” — that is, a nomination that would, if successful, “have a substantial impact” on the partisan balance of the court, either by creating a partisan tie, by reducing an existing 6-3 partisan majority to a slim, swing vote-susceptible 5-4, or by transforming an existing 5-4 split into a new 5-4 majority for the other party (which is what Cruz & Co. are worried that Obama will do now that Scalia is gone).
Critical nominations are pretty uncommon; there were 11 in the 1800s and eight in the 1900s. But because of their political importance, the rejection rate for this kind of nomination is really, really high: 42 percent. In contrast, the rejection rate for all other nominations is just 15 percent.
To test the predictive power of each of these factors, Ruckman created a statistical model and used it to analyze multiple variables. His findings should worry the White House. When the opposite party controls the Senate, a president’s Supreme Court nominee is 6.5 times more likely to fail. When it’s the fourth year of a president’s term, his or her nominee is 10 times more likely to fail. And when the nomination is “critical,” the odds of failure go up by a factor of 12.
Historically, any one of these roadblocks would be enough to derail a Supreme Court nominee. But whomever Obama nominates in the weeks ahead won’t face just one. He or she will face all three. That’s never happened before in U.S. history.
As Ruckman told Yahoo News by email, Obama’s forthcoming pick “would be one of the most phenomenal nominations in history, if successful.”
As the battle to replace Scalia gets underway, pundits will continue to complain about the unprecedented partisanship that has paralyzed Washington — and rightly so. Cruz’s argument that Obama doesn’t have the right to nominate anyone because it’s an election year — an argument that has been echoed by Senate Majority Leader Mitch McConnell — is plainly wrong.
But if, in the end, Obama’s nominee fails, then Ted Cruz — and the ongoing pandemic of polarization that he embodies — won’t really be to blame. According to our history, the president probably never had a chance to begin with.