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The claim: Trump is not the first president to nominate a Supreme Court justice amid an election
When President Donald Trump nominated Judge Amy Coney Barrett to serve on the Supreme Court, Democrats – including former Vice President Joe Biden – accused him of defying precedent and becoming the first president to nominate a justice while “a presidential election is already underway.”
This was refuted in a tweet by conservative author Douglas Karr, who listed 10 times presidents nominated someone to the country’s highest court during an election year.
Karr’s tweet was turned into an image that was shared across multiple social media platforms. Attempts to reach Karr through his website and Twitter were unsuccessful.
What did Biden mean?
The post used an excerpt from a statement Biden gave Sept. 27 in response to Trump’s announcement of his pick.
Biden's full quote: “Never before in our nation’s history has a Supreme Court justice been nominated and installed while a presidential election is already underway. It defies every precedent, every expectation of a nation where the people, the people, are sovereign and the rule of law reigns.”
His campaign confirmed to FactCheck.org that “already underway” meant voting had started.
Supreme Court nominations
The Senate keeps a comprehensive list on its website of every nomination to the Supreme Court going all the way back to 1789. It includes the date of nomination, whom the nominee was to replace, a record of the Senate vote and the confirmation date if the nomination was successful.
When did the nominations listed in Karr's tweet occur?
1988: President Ronald Reagan nominated Justice Anthony Kennedy on Nov. 30, 1987. The Senate confirmed Kennedy on Feb. 3, 1988.
1940: President Franklin Roosevelt nominated Justice Frank Murphy on Jan. 2. The Senate confirmed him 12 days later.
1932: President Herbert Hoover nominated Justice Benjamin Cardozo on Feb. 15, and the Senate confirmed him Feb. 24.
1916: President Woodrow Wilson nominated Justice John Clark on July 14. He was confirmed July 24.
1916: Wilson nominated Justice Louis Brandeis on Jan. 28. The Senate confirmed him June 1.
1912: President William Taft nominated Justice Mahlon Pitney on Feb. 19, and he was confirmed March 13.
1892: President Benjamin Harrison nominated Justice George Shiras on July 19. The Senate confirmed Shiras on July 26.
1888: President Grover Cleveland nominated Justice Melville Fuller on April 30. He was confirmed July 20.
1796: President George Washington nominated Oliver Ellsworth on March 3. The Senate confirmed Ellsworth the next day.
1796: Washington nominated two men on Jan. 26. One of them declined, and the other, Justice Samuel Chase, was confirmed Jan. 27.
Now that we know the dates these Supreme Court justices were nominated, the question is whether voting happened during the time of their nominations or confirmations.
That’s a bit of a history lesson.
Congress passed the Presidential Election Day Act in 1845 to create a uniform date for presidential and vice presidential elections. It set the date as “the Tuesday after the first Monday in November.” Before this law, states set their own dates, and elections could run the entire month of November. Some even stretched into the first week of December.
USA TODAY could find no evidence of voting before November during the 1700s or 1800s. This year, mail-in or absentee voting began in early September, and a number of states began both mail-in and in-person early voting Sept. 18 – the day Justice Ruth Bader Ginsburg died, according to USA TODAY.
Reed College Professor Paul Gronke, who runs the nonpartisan Early Voting Information Center, said early voting didn’t exist for the general public until the 1950s.
“Absentee ballots were first put in place in the 1864 election. That is absolutely the earliest time you could have people casting a ballot prior to an election date,” Gronke said. “It was in place for soldiers during the Civil War and then stopped.”
The practice resumed for those serving abroad during World War I and World War II, but the process wasn’t formalized until the Military and Overseas Voting Empowerment Act in 2009. The law created a “45-day transmission period for military and overseas ballots,” Gronke said. That’s the window many states use for their domestic absentee ballots and in-person early voting.
“The modern era of absentee voting didn’t start until 1978,” Gronke said. That’s when California became the first state in the nation to remove its requirement of a written excuse to cast an absentee ballot.
When asked whether he’d heard of any state casting a ballot in July (the latest any of these confirmations took place), Gronke said no.
Our rating: False
We rate this claim as FALSE, based on our research. None of the nominations in Karr's tweet was made while Americans were voting for president. Taft and Hoover were running for reelection when they made their nominations in 1912 and 1932. Both men lost in November.
Our fact-check sources:
History.com, Dec. 2, 2019, Why is Election Day a Tuesday in November?
U.S. Senate, accessed Oct. 12, Supreme Court Nominations (1789-Present)
FactCheck.org, Sept. 28, FactChecking Biden’s SCOTUS Speech and Repeats
Vote.org, Early voting by state
USA TODAY, updated Sept. 26, Election 2020: When early voting and mail voting for president begins in every state
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This article originally appeared on The Columbus Dispatch: Fact check: Is Barrett first Supreme Court pick while voting underway?