Fact Check? Biden Claims a SCOTUS Justice Has Never Been Nominated 'While a Presidential Election is Already Underway'

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Welcome to 2020, where the rules are made up and the facts don't really matter.

For example, presidential candidate Joe Biden claimed over the weekend that “Never before in our nation’s history has a Supreme Court justice been nominated and installed while a presidential election is already underway,” saying that such an action “defies every precedent.”
 


What Biden is (largely inaccurately) referring to is known as the “Thurmond Rule,” an unofficial policy that says at a certain point in an election year, a siting president stops nominating federal justices, including Supreme Court nominees, to graciously allow for the winner of the election to fill the seat. It’s not an actual rule – and, even more than that, it’s not followed.

Even an article by the Brookings Institute, which was not at all flattering to the GOP, explained:

There is no such tradition. The table shows the nine Supreme Court vacancies in place during election years in the Court’s post-Civil War era—once Congress stabilized the Court’s membership at nine and the justices largely stopped serving as trial judges in the old circuit courts. Those nine election-year vacancies (out of over 70 in the period) were all filled in the election year—one by a 1956 uncontested recess appointment and eight by Senate confirmation.


Of course, it's the exact wording from Biden that makes this one tricky - specifically, the reference to an election that's "already underway." In fact, the only reason the 2020 election is "underway" is because we're voting like we never have in the past: with record numbers voting by mail, and early. While blaming the coronavirus, many states like Michigan are allowing citizens to vote early by mail for the very first time, marking a major change not only in the election process but in its timing, as the official Election Day - November 3 - is still more than a month away.

So while Biden's claim might be technically true, that's only because we've so greatly expanded our election window, meaning that precedent based on a largely single-day election model becomes irrelevant.

Democrats’ so far fruitless push to shame Trump and the GOP into leaving Ruth Bader Ginsburg’s now-vacant seat open until after the election is in stark contrast to their demands in 2016, when the left slammed Senate Majority Leader Mitch McConnell for refusing to bring then-President Barack Obama’s SCOTUS pick , Merrick Garland, up for a vote on the Senate floor. At the time, Republicans controlled the Senate, allowing them to deny a vote on a Democrat president’s nominee until after the election, a move Democrats then berated as partisan and unfair.

 

Unfortunately for Democrats, not liking something - even something that has never technically been done before - doesn't make it unconstitutional. 

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