Obama’s election year Supreme Court choice is not unprecedented

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Obama’s election year Supreme Court choice is not unprecedented

Republicans argue that there is no historical precedent to President Obama's plans to nominate a replacement for Justice Scalia, but that's not entirely true.

In this Sep. 15, 1987 photo, former President Gerald Ford, left, introduces Supreme Court Associate Justice nominee Robert Bork, as the Senate Judiciary Committee began confirmation hearings on the nomination on Capitol Hill. AP

Feb. 15, 2016, 12:58 PM EST

By Jon Schuppe

At the center of Republicans’ opposition to President Obama’s plans to nominate a replacement for Supreme Court Justice Antonin Scalia is the argument that the move has no historical precedent.

That’s not entirely true — but the scenario is pretty rare.

The current situation — an opening on the high court during a presidential election year — has come up only a handful of times in modern history. Obama’s particular circumstances — an outgoing president in his last year in office — are even more unusual.

Leahy: SCOTUS shouldn’t mix with politics February 15, 2016 / 06:42

However, that doesn’t mean that it is customary to defer a nomination.

The last time something somewhat similar happened was 1987, when Democrats — led by then-Sen. Joe Biden — blocked the confirmation of Robert Bork, President Ronald Reagan’s choice to replace Lewis Powell. The defeat followed contentious hearings that fueled Republican grievances against Democrats for decades and turned Bork’s name into a verb meaning “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”

Reagan then nominated Anthony Kennedy. By then, Reagan was approaching his final year in office. The Senate unanimously approved Kennedy in February 1988.

After Scalia’s death on Saturday, many Republicans vowed to block anyone Obama nominates to replace him. They assert that Obama’s successor, who will be elected in November, ought to make the choice.

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History, however, doesn’t support that argument.

Since 1900, no president has chosen not to nominate a Supreme Court justice because of an impending election, according to an analysis by SCOTUSblog. And the Senate has little history of rejecting those late-term choices.

Even among those situations, it is rare for a president who is not seeking re-election to have a chance at a Supreme Court nomination.

Here are some other relevant cases:

President William Taft, a Republican running for re-election, nominated Mahlon Pickney in 1912, and the GOP-controlled Senate confirmed him. Taft lost the election later that year.
In 1916, Democratic President Woodrow Wilson nominated Louis Brandeis and John Clark while running for re-election. The Democrat-controlled Senate confirmed both of them, and Wilson won another four years in office.
GOP President Herbert Hoover, running for re-election in 1932, nominated Benjamin Cardozo, and the Republican-controlled Senate confirmed him. Hoover was voted out of office that year.
In 1940, President Franklin Delano Roosevelt, a Democrat, nominated Frank Murphy, who was confirmed by the Democrat-controlled Senate. Roosevelt went on to win another term that year.
President Dwight Eisenhower, running for re-election, nominated appointed William J. Brennan to the court while the Senate was in recess in late 1956. Eisenhower won the election, and Brennan was formally confirmed by the Senate the following year.
President Lyndon Johnson, who had chosen not to seek re-election, nominated Abe Fortas, who was already an associate justice on the court, to become chief justice in 1968. In that case, the Senate blocked Fortas’ promotion with a filibuster.

This article originally appeared on NBCNews.com.

Jon Schuppe