Ted Cruz is having a rough time, and now he just received a failing grade from a history professor.
Ever since Supreme Court Justice
Antonin Scalia passed away, 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.
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.
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.