Feb 15, 2016 3 min read

On Feb. 13, Supreme Court Justice Antonin Scalia passed away unexpectedly at the age of 79. Scalia’s body was barely cold when Republican presidential hopeful Sen. Ted Cruz tweeted “Justice Scalia was an American hero. We owe it to him, & the nation, for the Senate to ensure that the next president names his replacement.” Fellow Republican presidential hopeful Sen. Marco Rubio echoed this sentiment when he appeared on NBC’s “Meet the Press” and stated that President Obama shouldn’t bother trying to make a nomination for Scalia’s replacement.

To put a logical timeline on the situation, keep in mind that Scalia passed away on Feb. 13, 2016. The next president will not be sworn into office until Jan. 20, 2017 – nearly 11 months from now. Rubio backed up his stance by saying that “…it’s not just for the Supreme Court, even for appellate courts, both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process.”

We have to wonder if Rubio and Cruz would be making these same statements if the current president was a Republican, as they both need to return to school and repeat history class. The Supreme Court blog (scotusblog.com) looked into the history of nominating a Supreme Court justice in an election year. On Nov. 30, 1987, President Ronald Reagan nominated Justice Anthony Kennedy to Justice Louis Powell’s seat (Powell retired). Back in 1916, President Woodrow Wilson actually made two Supreme Court nominations – on Jan. 28, one for Louis Brandeis to replace Justice Joseph Lamar Rucker, who had passed away on Jan. 2; and on July 14, one for John Clarke to replace Justice Charles Evans Hughes, who resigned to run for president. And those are just a few examples of outgoing presidents nominating Supreme Court justices during an election year in the last 100 years.

And since Rubio pointed out that this doesn’t just happen at the Supreme Court level, we are happy to debunk that statement: In 1988, President Reagan made 26 nominations for district court justices and seven for Court of Appeals. In 2000, President Bill Clinton made 37 nominations for district court justices and nine for Court of Appeals. In 2008, President George W. Bush made 26 nominations for District Court justices and six for Court of Appeals. Finally, so far this year, President Obama has made four District Court nominations and four for Court of Appeals.

We understand the thought process of Cruz and Rubio, that the conservative Justice Scalia should be replaced by another conservative, nominated by a conservative president such as themselves. However, there is no guarantee that either will win, or that a Republican will win, for that matter.

Both should concentrate on their campaigns – and brush up on history – rather than spout off pompous pipe dreams.