It took the space of less than an hour after the death of Supreme Court Justice Antonin Scalia before conservatives were scrambling to find some kind of justification to block President Obama’s inevitable nominee, and declared that they would filibuster the nominee anyway, no matter who it was. Perpetual truant, anti-abortion extremist and immigration hypocrite Sen. Marco Rubio (R-FL) took to the Sunday talk shows in order to cobble together some kind of justification for his refusal to allow the President to fulfill his constitutional duty, telling MSNBC’s Chuck Todd that Obama shouldn’t even bother nominating someone since he’s in his last year:
“Because actually, it’s not just for the Supreme Court, even for appellate courts, both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process.”
Shockingly, this couldn’t be further from the truth. As Politifact discovered, this type of situation is very rare, but six presidents have appointed justices in the final year of their terms:
• 1968: President Lyndon Johnson — who announced he would not run for re-election — nominated Associate Justice Abe Fortas as Chief Justice and Homer Thornberry to fill Fortas’ vacancy. Fortas’ nomination failed, Thornberry withdrew his nomination and Chief Justice Earl Warren remained on the bench, delaying his retirement. (More on this later.)
• 1932, President Herbert Hoover nominated Benjamin Cardozo. Hoover lost to Franklin Delano Roosevelt.
• 1912: President William Taft successfully nominated Mahlon Pitney to the Supreme Court. Taft lost to Woodrow Wilson.
• 1956: President Dwight Eisenhower made a recess appointment of William Brennan.
• 1940: President Franklin Delano Roosevelt nominated Frank Murphy.
• 1916: President Woodrow Wilson nominated John Clarke and Louis Brandeis.
It doesn’t stand up for the lower courts either, as this handy chart from Politifact detailing the nominations for lower courts by the past four Presidents shows:
It’s clear that this is just another example of the post-knowledge world that Republicans live in – once they get on TV and keep repeating a false narrative, eventually the echo chamber will drill it into the minds of the public, where it becomes part of the GOP mythology that a disturbingly large portion of the nation will take on face value. If Rubio really loved the Constitution as much as he alleges he does, he wouldn’t stand in the way of his President’s constitutional duty to fill a vacancy on the highest court in our land.
Opinion columnist and former editor-in-chief of Occupy Democrats. He graduated from Bennington College with a Bachelor's degree in history and political science. He now focuses on advancing the cause of social justice and equality in America.