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Fact Check: Flake on SCOTUS nominee

Posted: 2:36 PM, Mar 14, 2016
Updated: 2016-03-14 22:59:30Z

As President Barack Obama is on the brink of selecting a U.S. Supreme Court nominee to replace the late Justice Antonin Scalia, Republican lawmakers have made a slew of historical statements related to vacant Supreme Court seats.

Sen. Jeff Flake joined the party in a Feb. 22 statement

“One would have to go back more than a century to find a scenario where a president’s nominee for the Supreme Court was confirmed by the opposition party in the Senate when the vacancy occurred during an election year,” Flake said. 

We put Flake's claim through a PolitiFact truth check. 

Checks out

Experts we spoke with generally agreed with Flake’s claim.

Sarah Binder, a political scientist at George Washington University, said Flake’s statement is “technically correct.” She noted that there are no 20th century examples of a Supreme Court vacancy in an election year that the opposition party in the Senate refused to consider.

Flake's statement is "technically correct."

“The only seat left vacant was Sherman Minton's, who resigned in October 1956, one month before the election. The (Democratic-controlled) Senate had already adjourned for the elections, so (Republican) President Eisenhower gave William Brennan a recess appointment, and he was later nominated and confirmed in 1957,” Binder said.

A recess appointment isn’t the same as submitting a nominee, according to Russell Wheeler, an expert on federal courts at the Brookings Institution.

“Eisenhower didn’t submit a nominee; he recess appointed Brennan then nominated him the following January. It helped that Brennan was a Democrat,” Wheeler said.

Our ruling

Flake said, “One would have to go back more than a century to find a scenario where a president’s nominee for the Supreme Court was confirmed by the opposition party in the Senate when the vacancy occurred during an election year.”

He’s right. This seems to be because a vacancy just hasn’t happened to occur under these circumstances.

We rate Flake’s claim as True.

Null

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