Ted Cruz had this to say while speaking with host Chuck Todd on Meet the Press:
“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
First, when he says election year, he can only mean a year with a Presidential election, because the number of justices that have been nominated and approved in elections years that affected the senate is a different story. Yes, Obama nominated Elena Kagan for the Supreme Court in 2010, and she was approved within the same year as the senate election in which Democratic seats dropped from fifty-seven to fifty-one. Bill Clinton did the same with Stephen Breyer in 1994 when the Democrats lost their majority in the senate, slipping from fifty-six seats to forty-eight. But the reason Cruz and other conservatives won’t mention this is because Republican Presidents have done the exact same thing. George H.W. Bush nominated David Souter in 1990. Richard Nixon nominated Harry Blackmun in 1970. And the recently-deceased Antonin Scalia was nominated by Ronald Reagan in 1986.
Second, the idea that there is a long tradition of this non-practice implies that many justices have either died or retired in election years only for the President to wait for the election to be over to fill their seat. Only that’s not the case. The whole reason Cruz and Rubio and anyone else can act like there’s some magical clause in the Constitution about this situation is because it’s so unbelievably rare. In fact, the last time a Supreme Court Justice died or retired in an election year is 1956, when Sherman Minton resigned on October 15. Did Eisenhower, a Republican President, wait until after the election to name his choice? Nope. He appointed William Brennan, Jr. through a recess appointment, meaning the senate wasn’t even in session, something that the right will lose its collective mind over if Obama tries it. But the point remains: it’s been sixty years since the opportunity for a President to nominate a Supreme Court Justice in an election year has even arisen. For the next example, you’d have to go back to Fred Vinson, appointed in 1946, eighty years ago—from which Cruz’s non-existent idea of a long-standing tradition springs.
So there you have it. From 1946 onward, only two Presidents have ever nominated someone for the Supreme Court in the same year as a Presidential election, and the most recent example, in 1956, is one where a Republican President made an appointment while the senate was out of session less than a month before the election. Brennan was confirmed the following year with only the infamous Joseph McCarthy voting against his appointment. But will anyone discuss this point? No. It’s all lame duck this and lame duck that from here on out.