Fact check: Romney’s “historical precedent” isn’t that historical

“The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”

Mitt Romney

In announcing his decision not to obstruct a Supreme Court nomination by President Trump, Mitt Romney – who voted earlier this year to convict Trump of obstruction of justice – cited a “historical precedent” that caught us here at Pyramid off-guard. The Romney Rule is the latest version of the McConnell Rule which is the latest version of the Biden Rule, so let’s go over each version in brief.

The Biden Rule was claimed into being by Mitch McConnell in 2016. It has no basis in the rules of the Senate and instead came from a 1992 speech in which Joe Biden, then a senator from Delaware, said that a vacancy in 1992 shouldn’t be filled until after the election or, if then-candidate Bill Clinton won, until Clinton was inaugurated.

As 2016 became 2020, the rule became the McConnell Rule and had more qualifiers to it: if the president’s party won the previous midterm, then their nominees would be allowed a vote on the floor of the Senate, but if they didn’t, then they’d have to wait until after the presidential election. Even this requires a careful calibration, because the Republicans lost control of Congress in 2018, but because they maintained control of the Senate, McConnell says this constitutes “winning” the midterm.

The Romney Rule, announced September 22, is that regardless of how you perform in the midterm, nominees to the Supreme Court are only confirmed on a presidential election year if they are nominated by a member of the same party as the Senate. The Romney Rule is probably the truest of the three – both because the Biden Rule was never implemented and because it’s less convoluted than the McConnell Rule – but Romney claims its a historical precedent. Is it?

Kind of.

For much of the history of the country, Supreme Court nominees were only blocked if there were questions about their qualifications or their character. In the early 20th century, there are few failed nominations.

Then, in 1968 – an election year – President Lyndon B. Johnson nominated Associate Justice Abe Fortas to be the Chief Justice. Senator Strom Thurmond blocked Fortas’ nomination on the grounds that the election was too close and that, because Fortas would not receive unanimous consent, his nomination had to wait until after the election. This was the foundation of the Thurmond Rule, although exactly when it earned its name is somewhat ambiguous.

Exactly whether the Thurmond Rule is “bipartisan consent is required for election year nominations” or whether its really “if the Senate isn’t controlled by your party, you don’t get the make election year nominations” is worthy of debate. The rule was only clearly applied in 1968 to block Fortas and Homer Thornberry (who was nominated for Fortas’ seat when Fortas was nominated to replace the late Chief Justice Earl Warren). The sheer luck of when justices die or retire has meant few vacancies in election years. Here they are, since 1920:

NomineeYearParty ControlConfirmed?
Benjamin Cardozo1932Republican (Hoover)
Republican Senate
Frank Murphy1940Democratic (F.D. Roosevelt)
Democratic Senate
Abe Fortas1968Democratic (L. Johnson)
Republican Senate
Homer Thornberry1968Democratic (L. Johnson)
Republican Senate
Merrick Garland2016Democratic (Obama)
Republican Senate

Romney’s claim of a “historical precedent” isn’t exactly wrong, but it’s a question of correlation and causation. Of the five presidential election year nominations in the past century, the only ones that have been blocked have been when Republicans controlled the Senate but not the presidency. On the other hand, the only ones that have been approved are when the same party – Republican or Democratic – controlled both.

These are also accurate “precedents” that could be drawn from this information:

  1. No nominee made in an election year has been confirmed since the end of World War II
  2. Never have two nominees who share their names with members of the Simpsons been confirmed in the same year
  3. No Republican nominee has been confirmed in an election year since 1932
  4. The last time a Democratic president made an election year nomination and had it confirmed by a Republican senate was 1888

That last part is perhaps the most interesting: in 1888, Grover Cleveland, a Democrat, nominated Melville Fuller to be Chief Justice. Fuller won 41-20 confirmation from the Republican-controlled Senate. This means the “precedent” cited by Romney has to refer to the period after 1888, in which case, again, there are only three examples, and all are Republicans blocking Democratic appointments.

The truth is that these claims of precedent and rule are meant to be civilizing masks, a shield to protect lawmakers from the reality that Republicans – and it has solely been Republicans – block Democratic nominations because they want to block Democratic nominations.

There’s no need to pretend there’s a rule, as many conservatives have pointed out. Just admit that you want six conservative justices and you’re going to confirm the nominee even if it means Associate Justice Ivanka Trump.