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Filling a Supreme Court seat in an election year happens more often than you think

BY   February 15, 2016 at 3:22 PM EDT
Former Supreme Court Justice Antonin Scalia’s death on Saturday has set off a major political battle over filling his seat during an election year. Photo by Reuters/Carlos Barria

Former Supreme Court Justice Antonin Scalia’s death on Saturday has set off a major political battle over filling his seat during an election year. Photo by Reuters/Carlos Barria

How unusual is it really to fill a Supreme Court vacancy during a presidential election year?

That question is at the heart of the political fight to replace former Supreme Court Justice Antonin Scalia, who died Saturday at 79.

“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year,” Sen. Ted Cruz of Texas told Chuck Todd on Sunday’s Meet the Press.

But as it turns out, several Democratic and Republican presidents have filled a vacancy on the nation’s highest court in the middle of a heated campaign season.

Since 1900, presidents have nominated seven people for seats on the Supreme Court during an election year, according to SCOTUSblog. Six of the seven were confirmed by the Senate.

As it turns out, several Democratic and Republican presidents have filled a vacancy on the nation’s highest court in the middle of a heated campaign season.

The Senate confirmed Mahlon Pitney to replace John Marshall Harlan during President William Taft’s last year in office in 1912. Woodrow Wilson placed two men on the Supreme Court, Louis Brandeis and John Clarke, while running for re-election in 1916.

Herbert Hoover added Benjamin Cardozo to the court in 1932, the year he lost re-election to Franklin Delano Roosevelt. Frank Murphy joined the court eight years later, as FDR faced off against Wendell Willkie in the 1940 presidential race.

Most recently, Justice Anthony Kennedy was confirmed by a Democratic-controlled Senate in 1988, during Ronald Reagan’s final year in office.

The only exception came in 1968, when the Senate blocked the nomination of Abe Fortas, Lyndon Johnson’s pick to replace Chief Justice Earl Warren. (Dwight Eisenhower appointed William Brennan to the court during a Senate recess in 1956; Brennan was confirmed by the Senate the following year, after Eisenhower won re-election).

In the days since Scalia’s death, Democratic leaders have pointed to the past as they’ve urged the Republican-controlled Senate to fill Scalia’s seat this year.

“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” Senate Minority Leader Harry Reid said in a statement.

Democratic presidential candidate Hillary Clinton argued that the Senate has a “constitutional responsibility here that it cannot abdicate for partisan political reasons.”

Clinton’s opponents have said they won’t back down, setting up a battle that could help define the election and reshape the congressional calendar during President Obama’s final 11 months in office.

“We’re going to have an election in November where this vacancy is going to be an item of debate and voters are going to get their weigh in,” Senator Marco Rubio of Florida said on Meet the Press yesterday. Rubio added, “I don’t trust Barack Obama on the appointment of Supreme Court justices.”

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