Fact Check: New York Times Cuts Precedent for Election Year Nominations By Almost Half [Updated]

Last night, I was finalizing my column for USA Today when one of my editors flagged my reference to the roughly 30 election-year nominations to the Supreme Court as a possible error.  The New York Times ran a story declaring that there “there have been 16 Supreme Court vacancies that occurred before Election Day.” I have previously discussed glaring misstatements of cases in major media, but this was unnerving because the New York Times was suggesting that the precedent for the current nomination was roughly half as previously thought. I decided to do another rough count and, if anything, it would seem that the 29 nomination figure is arguably too low and that there appears almost twice the number cited by the New York Times.  The difference appears in part counting a calendar year rather than a year from election, but that approach causes problems in comparison given the earlier early election calendars.

There has been considerable push back on the “precedent” for an election-year nomination.  NBC Meet the Press Host Chuck Todd exclaimed “What precedent?!” when  John Barrasso (R-WY) even used the word precedent in his interview. In reality, such nominations have occurred regularly in history. Indeed, the late Justice Ruth Bader Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” (While Todd correctly considered it newsworthy to note that Ginsburg wanted to leave her seat for the next president to fill, he did not consider it relevant to also note that Ginsburg previously insisted that the Senate was supposed to fill such seats in an election year). Justice Sonia Sotomayor also stated that it was wrong to leave the Court with only eight justices.

That debate will continue to rage, but we should be able to reach a consensus on the historical record, even in this time of rage.  Here is my effort (taken at my own peril).

I may be missing something obvious but I count 30 nominations in the year before a presidential election.  The current vacancy could produce 31.  There are a couple that could be excluded by a day or so (Johnson, Rutledge, Jay, and Crittenden). There is a recess appointment (Brennan).  There were also a couple on the last day of the election period (King and Walworth). Moreover, a couple nominees were nominated and then renominated. Some are repeaters. For example, President John Tyler nominated Reuben Walworth three times in 1844, but Tyler was unpopular with the Democrats and the Whigs in Congress (leading to a series of stalled efforts on nominations and legislation). Spencer and King were also repeaters but represented separate nominations. However, even with such eliminations, it comes to roughly 30 not 16 from what I can see.

The New York Times also states that only one nomination was made in a short period in history (Chase) at 27 days. Again, I may be missing something but Chase was nominated on December 4, 1864.  The election was on November 4, 1864. That would appear after the election, but I added him since it occurred during a lame duck period. Moreover, a couple of nominees (King and Walworth) appear to have been nominated on the actual last day of the election.

Keep in mind that the date of presidential elections has changed and once occurred over a longer time span. Anyhow, at the risk of making a fool of myself, here are the nomination dates with the election dates in parentheticals.

Thomas Johnson Oct. 31 1791 (Nov-Dec 1792)

John Rutledge Dec. 10, 1795 (Nov.-Dec. 1796)

John Jay Dec. 18, 1800 (Oct. –Dec. 1800)

Gabriel Duvall, Nov. 15, 1811 (Oct.- Dec. 1812)

Joseph Story, Nov. 15, 1811 (Oct. –Dec. 1812)

Smith Thompson Dec. 5, 1823 (Oct.-Dec. 1824)

John Crittenden Dec. 17, 1828 (Oct.-Dec. 1828)

Roger Taney Dec. 28, 1835 (Nov. – Dec. 1836)

Philip Barbour Dec. 28, 1835 (Nov. – Dec. 1836)

John Spencer Jan. 8, 1844 (Nov. – Dec. 1844)

Reuben Walworth March 13, 1844 (Nov. – Dec. 1844)

Edward King June 5, 1844 (Nov. –Dec. 1844)

John Spencer June 17, 1844 (Nov. –Dec. 1844)

Reuben Walworth June 17, 1844 (Nov. –Dec. 1844)

Edward King Dec. 4, 1844 (Nov. –Dec. 1844) *last day of the election on Dec. 4th

Reuben Walworth Dec. 4, 1844 (Nov. –Dec. 1844) *last day of the election on Dec. 4th

Edward Bradford August 16, 1852 (Nov. 2, 1852)

Salmon Chase December 4, 1864 (Nov. 4, 1864) (post election; lame duck period nominee)

Melville Fuller, April 20, 1888. (Nov. 6, 1888)

Lucius Lamar, Dec. 6, 1887. (Nov. 6, 1888)

George Shiras, July 19, 1892 (Nov. 8 1892)

Rufus Peckham Dec. 3, 1895 (Nov. 3, 1896)

Mahlon Pitney March 13, 1912 (Nov. 5, 1912)

Louis Brandeis January 28, 1916 (Nov. 5, 1916)

John Clarke June 10, 1916 (Nov. 7, 1916)

Benjamin Cardozo January 12, 1932 (Nov. 8, 1932)

Frank Murphy January 4, 1940 (Nov. 5, 1940)

William Brennan (recess appointment shortly before 1956 election)

Homer Thornberry June 26, 1968 (Nov. 5, 1968)

Abe Fortas June 26, 1968 (Nov. 5, 1968)

Anthony Kennedy November 30, 1987 (Nov. 8, 1988)

Merrick Garland March 16, 2016 (Nov. 8, 2016)

I could certainly be missing something. Even if the New York Times maintains that there were only 16 such nominations, it should explain its calculation. The most obvious explanation is that the Times is focusing on the calendar year instead of the common reference to “within a year of an election.” The difference however is small. Though early elections included October voting, the difference is the lost of two months in most cases. Moreover, for early election including October, it would cut off three months where presidents have moved within the year of the election, which seem a tad arbitrary and adds an unnecessary barrier for easy comparisons.  Moreover, using “vacancies” rather than “nominations” does not address the discrepancies.  While some were nominated for the same vacancies, there are clearly many more such cases.  Finally, it makes not sense to focus on vacancies. The issue is whether it is extraordinary for the a president to make a nomination within a year of an election. It is not.

Of course, I could certainly be wrong but the Times seems to be advancing too low of a figure. I consider this a working list in progress, so if you spot any errors or omissions please let me know.

378 thoughts on “Fact Check: New York Times Cuts Precedent for Election Year Nominations By Almost Half [Updated]”

  1. Advise and Consent is the Senates role, Nomination is the President’s. Obama nominated and the Senate made there judgment to not approve. The then leadership of the Senate saw no need for hearing’s as the nomination would have failed regardless of how the heating went. Elections do indeed have consequences. Obama could have consulted with Senate leadership to choose a candidate more centered and acceptable to leadership.

    1. “the Senate made there judgment to not approve.”

      No, it didn’t. McConnell made that decision. McConnell is not the Senate.

      1. The Senate selected McConnell as majority leader and he clearly performed his job as the majority wanted because he’s still there. The will of the Senate was for McConnell to withhold hearings which is the effective equivalent of a no vote. As Biden said in ’92, it makes no sense to hold hearings during an election year when the Senate and Presidency is divided because we all know the outcome and therefore why put the candidate and the nation through that? How the Senate responds in such a situation is purely the Constitutional prerogative of the Senate. The Constitution does not mandate a vote from the Senate for the President’s nominee to the court. The judgement of the Senate was to withhold approval…”to not approve.” This isn’t complicated.

        1. “The Senate selected McConnell as majority leader”

          Nope. The Senate Republicans chose McConnell. “Senate” and “Senate Republicans” aren’t synonyms.

          “The will of the Senate was for McConnell to withhold hearings”

          We actually don’t know the will of the Senate. We’d only have known the will of the Senate as a whole if the Senate as a whole had voted on whether to have hearings or not.

          “As Biden said in ’92, it makes no sense to hold hearings during an election year when the Senate and Presidency is divided because we all know the outcome and therefore why put the candidate and the nation through that”

          That isn’t what Biden said. And I’d already pointed that out to you, so I have to wonder why you continue to make false claims about what he said instead of looking it up.

          “The Constitution does not mandate a vote from the Senate for the President’s nominee to the court”

          I agree and have never suggested otherwise.

          “The judgement of the Senate was to withhold approval …”

          Nope. Again: McConnell is Majority Leader. He is not the Senate, and we don’t know what the Senate as a whole wanted to do.

  2. Article 1, Section 2

    The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court,…

    “That’s their job.”

    “There’s nothing in the Constitution that says the president stops being president in his last year”

    – Ruth Bader Ginsburg

  3. FWIW, I emailed Turley about some clear typos, such as his originally having written that Brandeis was nominated in 1912 instead of 1916, as well as the difference between counting vacancies and counting nominations, and he’s updated the article, as is clear from the title. But he hasn’t done a very good editing job. For example, it still says “Even if the New York Times maintains that there were only 16 such nominations, it should explain its calculation,” when the Times didn’t “maintain[] that there were only 16 such nominations,” but that there were only 16 such **vacancies** in an election year prior to the election. They don’t need to explain their calculation; one you specify a focus on election-year nominations prior to an election, there isn’t a “calculation,” only a count, which is pretty straightforward.

  4. Kyle Griffin on Twitter: “.@AOC has repurposed $1 million from her campaign operation to spread the word about the census, using digital ads, flyers and phone banks to encourage people in her district, half of whom are immigrants, to participate. https://t.co/wNkkrlPg8q ” (links to a NYT article)

    Good for her.

    Trump, on the other hand, is aiming for an undercount by cutting off the Census work a month early. He’s the sh*ttiest President ever.

    1. Original Intent: In the 1788 Presidential Election, voters were generally required by States to be: Male, European, 21 with 50 lbs. Sterling or 50 acres.

      George Washington is elected President with a turnout of 11.6%.

      Naturalization Acts of 1790, 1795, 1798 and 1802

      United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

      Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof

  5. Nancy speaking Bidenese.

    At Walt Disney World, when the animatronics do this kind of stuff, they shut down the ride


    1. Commit loves the CCP, and Pooh Bear!

      She’s doing her best to help the ChiComms…..and her Tik-Tok account.

      What great American!

      Did you ever attend any of the FREE TIBET concerts headlined by Rage Against the Machine, whose front man is a Communist?

      You’d be a natural for that!

      1. Rhodes, why do you lie about and insult people you disagree with?
        Do you think that’s good for the country?
        Or is entertaining yourself more important to you?

          1. No, mistressadams, I don’t lie about people. I dare you to quote even a single time that I’ve lied about someone here or to retract that false accusation.

            I do sometimes insult people in response to their having insulted me or others; other times, I instead ignore their insults or note the insult without responding in kind. I try not to initiate insults, unlike Rhodes, who regularly initiates it. My insults are also much milder than many of the ones I receive. So I don’t consider it quite “the same thing,” though I accept it if you do.

              1. That’s quite a non sequitur.

                I don’t visit conspiracy sites.
                If he’s truly a whistleblower, then he presumably submitted a whistleblower complaint to the DOJ OIG, and it will be investigated.

                  1. Again: If he’s truly a whistleblower, then he presumably submitted a whistleblower complaint to the DOJ OIG, and it will be investigated.

        1. I didn’t lie about anything, and you are wholly dishonest.

          You’re still prattling on about Russia, while ignoring China. Who even Pelosi has admitted is working to influence the election in favor of Biden.

          So if you had an honest bone in your body (which you don’t) you would be just as concerned about China. Instead you pretend like you’re some sort of patriotic American who is concerned about Russian meddling, while completely ignoring China’s meddling.

          Just like the idiotic hypocrites wearing FREE TIBET T-shirts at a FREE TIBET concert. All while Zach de la Rocha exhorts the benefits of Communism on stage.

          TDS combined with PTS is a helluva condition.

          The same applies to you, anon.

          1. The FBI is not as concerned about China as Russia because they are not nearly as active. Facts matter Rhodes and you avoid them.

          2. You did lie, Rhodes. Your claim “Commit loves the CCP, and Pooh Bear! She’s doing her best to help the ChiComms…..and her Tik-Tok account” is a lie. I don’t love the CCP, I’m not trying to help them, and I don’t have a TikTok account. I have no idea what the reference to Pooh Bear is, but if you were talking about the A.A. Milne character, I’m rather too old for that.

            China is definitely a concern too, and if China posts a deep-fake parody about Trump, I’ll post that too, which I mostly posted for it’s humorous content.

            “you are wholly dishonest.”

            Yet you don’t give any examples. Go ahead: quote any lies you think I’ve posted, like I just quoted your lies.

            At least you didn’t deny your insults.

            1. You lie by omission constantly, and you also just lie outright all of the time.

              All you are is yet another partisan who only cares about your chosen tribe, and could care less about anyone who is not in lockstep with your tribe’s ideology.

              Just like the spoiled little fascist Trustafarian brats in Antifa.

              1. All you’re doing is making empty claims, Rhodes. I quoted you to illustrate your lies in the comment I responded to. You haven’t quoted any lie from me (not in general, and especially not a personal lie of the sort that I just quoted from you, where you made several false claims about me personally).

                And gosh, what a surprise that you add yet more insults. /s

                1. Committed:

                  I admire your incessant arguing after the final whistle. When you do that, it’s whining. Maybe they didn’t discuss this concept at your research university but most folks can figure it out. Say these slowly to help:

                  The Prez gets to appoint justices to the SCOTUS.
                  The Republican Senate gets to confirm them.
                  Senate Majority Leader McConnell has the votes to do so and will call for it.
                  A conservative and likely Pro-Life person will likely be the next member of the SCOTUS insuring a conservative majority for a generation.
                  Earl Warren is dead.
                  I’m betting Clarence Thomas resigns after Trump wins giving him 4 picks.
                  Changing the Constitution requires more than just hoping you can.
                  There is nothing the Dims can do about this at the present so they ought to accept it.

                  1. Mespo, none of that is relevant to my exchange with Rhodes.

                    As for your claims, the President gets to nominate Justices to the Supreme Court. They’re appointed if the Senate confirms them; otherwise, they aren’t, unless the President uses a recess appointment. Several times in our history, a nominee has not been appointed. Merrick Garland was the most recent example, because McConnell didn’t want Garland on the court and was too cowardly to bring the nomination up for a vote. We’ll see how things play out with whomever Trump nominates. I have no doubt that Trump will nominate a conservative judge who is likely anti-abortion, but I have no need to pretend to read the future. We also don’t know what will happen after that, so your assumption that it will “insur[e] [sic] a conservative majority for a generation” is only that.

                    “Changing the Constitution requires more than just hoping you can.” Duh.

                    I’m unsurprised that you continue to insult. It is your nature.

    2. ha! that was great. RT staff in America have a fantastic sense of humor

      I like Max Keiser’s show

  6. Jonathan: Fact checking the NY Times is not your only problem. You ought to have one of your editors also check your grammar. That said, in the 20th century I can find only 5 Supreme Court nominations and confirmations in the same year as a presidential election. And the death of Justice Ginsburg is the first vacancy to occur within 60 days of a presidential election. As you say I may be “missing something” so I will stand corrected. Trump and McDonnell are losing no time in trying to ram through Ginsburg’s replacement despite the fact that 62% of Americans say the Supreme Court vacancy should be filled by the winner of the election. What the American people think is of no concern to either Trump or McConnell. They want to lock in a 6-3 conservative court majority. The betting line is that Trump will select either Judges Amy Barrett or Barbara Lagoa, both ultra conservatives. But whoever Trump chooses she will be white with “good genes”. In none of his Supreme Court pics has Trump chosen a person of color.

    “Good genes” are important to Trump. He made that clear in a rally in Bemidji, Minnesota on Saturday. In addressing a largely white audience in which the state is 80% white Trump used a racist dog whistle to appeal to his white supporters. He said: “You have good genes, you know that, right?… a lot of it is about genes, isn’t it, don’t you believe? The racehorse theory. You have good genes in Minnesota”. Trump is unapologetic about his racism. For a long time Trump has espoused the pseudoscience of eugenics–the theory that “inferior” bloodlines should be trimmed to improve the gene pool. In 1990 Trump said: “You know I’m proud to have German blood”. In his immigration policies Trump made it clear he only wants immigrants from places like Germany–not from “shithole” countries. Like Trump the Nazis had their own race theory. In fact, they studied eugenic practices in the US before implementing their own sterilization program for Jews, gypsies and homosexuals. The US has a long and sordid history in eugenics practices–including the forced sterilization of blacks and other minorities. That practice continues today. In fact just last month a doctor at an ICE facility was accused of performing forced sterilizations on immigrant women. Trump is so desperate to win Minnesota he is willing to appeal to the worst racist instincts of his supporters.

    1. Ah yes.

      Dennis they have Nordic blood there in Minnesota. high IQs., big strong bodies. Good social instincts. I know that may trouble you to hear, even though if you are Irish you prolly have a measure of it yourself. You know, viking raiders and such. LOL. Think of Jesse Ventura. Big, strong, smart, brave, Minnesotan. btw his dad Slovak, mom German. Good genes !!!! lol

      The downside to the Nordic blood and cultural traits, is the willingness to ignore foreign interlopers. Southern europeans have the edge on dealing with invasions, because, the Med was the crossroads of Empire. so they had to be strong and fight fast to survive. Up north, the interlopers much just freeze to death come winter.

      Sorry guys, had to give you a little “evolutionary psychology” hypothesizing there

  7. The real reason that the Democratic Party tribal members are so upset is because Ginsburg should have resigned while Obama was still in office, but she assumed that Hillary would win, so all would be well.

    She gambled, and she lost the wager. So, she’s dead, and now the Democrats have to pay off the bet that she lost.

  8. What ever the NY Times prints is of no consequence as it’s only valid use is starting fires In the fire place or lining bird cages. Both useful to the socialist left. the correct three seconds to find answer is

    Since 1789, there have been 163 formal nominations (of 144 persons) to the Supreme Court; through 2018, 126 have been confirmed.

  9. Only a Republican appointed Supreme Court Justice would say that a President does not stop being a President in the last year of his term. Oh! Excuse me, it was Justice Ginsburg who exclaimed it so. In respect, we should hold her statement in high regard.

    1. If you should hold her statements in high regard, you should abort yourself because the timing right now is not convenient. Try again in 4 years. Ralph Northam is willing to see you now

  10. Quotes from “Ethics of the Fathers” may help those with steeled positions
    Joshua the son of Perachia would say: Assume for yourself a master, acquire for yourself a friend, and judge every man to the side of merit.———–
    Judah the son of Tabbai would say: When sitting in judgment, do not act as a counselor-at-law. When the litigants stand before you, consider them both guilty; and when they leave your courtroom, having accepted the judgment, regard them as equally righteous.——–
    Shimon the son of Shotach would say: Increasingly cross-examine the witnesses. Be careful with your words, lest they learn from them how to lie.——–
    Avtalyon would say: Scholars, be careful with your words. For you may be exiled to a place inhabited by evil elements [who will distort your words to suit their negative purposes]. The disciples who come after you will then drink of these evil waters and be destroyed, and the Name of Heaven will be desecrated.——–
    Rabbi Shimon the son of Gamliel would say: By three things is the world sustained: law, truth and peace. As is stated (Zachariah 8:16), “Truth, and a judgment of peace, you should administer at your [city] gates.”———-
    Then there is the often used statement from Matthew “Judge not, that ye be not judged” “For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again”.———
    Today we see that the Democrats’ are determined to redefine our Republic as a closed Anocracy! I just hope the public sees the faults of such a seismic shift and rejects their candidates for public office.

  11. A lot of people here need to get over themselves. The constitution says the president nominates and the Senate confirms. Everything else is noise.

    And if the Democrats had the White House and a senate majority they would o exactly the same thing.

    1. So the Senate should have held hearings and a vote on Garland. They could have voted to reject his nomination, but McConnell was afraid that Garland might have been approved in an actual vote and was afraid of that it would make things harder for the Republican Senators up for reelection.

      1. Good for McConnell. Wise move. Don’t pretend Democrats would not do it if they were in power.

        1. the salient point here, which she understands but evades, is that right now Republicans hold the POTUS and Senate so can make it happen like it or not

          as has been the case many other times in history. perfectly legit exercise of constitutional power

          1. Kurtz you dummy, the sin was stealing Obama’s seat – with almost a year to go before he left office – and pretending it was a high minded bow to the voice of the people. Of course this is legal now. Just like the phony arguments about precedent – like JT’s waste of time propaganda – that’s irrelevant and not the debate. The debate is between Republicans in 2016 and the same Republicans now. Like the s..t stain on the GOP from Trump, this one will not quickly go away and it shouldn’t

            1. Kurtz you dummy, the sin was stealing Obama’s seat

              The pretensions of partisan Democrats notwithstanding, the seat wasn’t Obama’s property and the Senate was under no obligation to pay him any mind. (Harry Reid et al kept court of appeals nominations on ice for years at a time).

              1. The seat was the property of American citizens who voted twice for Obama. That makes him our agent and we are rightfully pissed the GOP stole it. Ingenius how the Constitution works, isn’t it?

                1. Ingenius how the Constitution works, isn’t it?

                  LOL! As I recall, your agent made his nomination. So no, the GOP didn’t steal your agent’s nomination. Someone once said, Elections have consequences. And at the end of the day, the Senate won.

                  Ingenious how the constitution works indeed!

              2. Deco, the seat was more properly the American citizens who voted twice to elect our agent Obama. That – and the Senate’s obligation to advise and consent – is in the Constitution. Read it sometime.

                1. Deco, the seat was more properly the American citizens who voted twice to elect our agent Obama. That – and the Senate’s obligation to advise and consent – is in the Constitution. Read it sometime.

                  They have no obligation to do anything at all, there is no textual language which suggests they do, and no partisan Democrat ever suggested they do until it was inconvenient to the Democratic Party. Again, Garland was treated courteously, The last Republican nominee to the court who was treated as well was David Souter.

                  1. Doofus, “advise and consent” is not an option, it is a duty and responsibility the GOP Senate shirked in order to steal a seat from a popularly elected President. That means they stole it from most Americans who believe differently than the minority viewpoint you and your dying party represent. Of course they claimed the opposite, that it was voters they cared about. Now everyone knows that was complete and utter BS. You don’t think this will be noticed? You don’t think there will be payback eventually.

                    As noted by others, the Garland exercise and now this means don’t expect any judicial nominees getting a hearing anytime during the term of a president when the Senate is in the hands of the other party. With your shrinking party, you’ll be in the wilderness for a long time.

                    1. Hey Doofus, when you went to your parents for their advise and consent to take their car and debit card for a road trip with your loser friends, that didn’t mean it required them to do anything more than tell you no. Obama got a no. Similarly, there is a reason the Paris Accord was not a Treaty. The constitution is your friend. Try it.

                    2. Olly, the Senate said nothing, and it was their constitutional obligation. My long deceased parents didn’t hide in a closet and start talking about how Eddie Haskell needed to weigh–in.

                    3. the Senate said nothing.

                      That would be a false statement. Otherwise known as a lie.

                      Feb. 22, 2016: McConnell reaffirms his stance: “Of course it’s within the president’s authority to nominate a successor even in this very rare circumstance — remember that the Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago — but we also know that Article II, Section II of the Constitution grants the Senate the right to withhold its consent, as it deems necessary.”

                      Translated: NO! Go to your room.

                    4. Doofus, “advise and consent” is not an option, it is a duty

                      It is nothing of the kind. You continually asserting something which has no reality outside the imagination of people who generate Democratic talking points does not make that fantasy a reality.

                      Brett Kavanaugh’s nomination to the Court of Appeals was left pending for 34 months, courtesy Harry Reid and Dick Durbin. (I think it had to be formally re-transmitted when Congress reconvened in January of 2005).

                    5. yawn, insults, lies, and more verbal games.

                      Nominee coming, & will be confirmed. savor that prediction, consider if ranting will help stop it or not. then, rant away

                2. Book – You seem to think “advise and consent ” means consent is mandatory. No it isn’t. If it were mandatory it would be meaningless. There would be no point in sending the appointment to the Senate at all. In this context it clearly means that if the Senate does not consent the appointment will not be allowed.

                  Obama had already done enough damage to this country without allowing another radical judge into the judiciary, much less in the highest court in the land.

                  1. Advise and consent does not mean agree to whoever the President chooses. You’re a lawyer?

                    1. Speaking of Advise and consent.

                      Too bad Ginsburg wasn’t strongly advised to retire in 2015, huh Book.

                      Instead, the old broad decided to stay in her seat until her very timely demise.

                      She played the Ponies and lost, when Angel of Death came along the rail from 6 furlongs back and beat her horse by a nose at the finish line.

                      Them’s the breaks.

                    2. Book — No, it does not mean agree to whoever the President chooses.

                      That’s why Obama’s crappy choice was left in the cold, thank goodness.

                      ‘Consent’ in this instance means something that may be granted or withheld at the pleasure of the Senate.

                      Like Commit you are almost incapable of offering a response without salting it with what you think is an insult. Peculiar behavior that you and she share.

                    3. You’re complaining they ‘stole’ the seat because they didn’t confirm him. Can you keep your BS argument straight?

                    4. Young, I’m glad you figured that out and you’re welcome!

                      The Senate failed their constitutional duty and then blamed it on the importance of the voice of the people! urns out they don’t GAFF about the voice of the people, do they? Do I hear an argument? Going once!

                      By the way, Garland was easily confirmed for his District Court seat and received much praise from GOP Senators at that time. It turns out that if there was a Biden Rule – there wasn’t – he was the perfect nominee to meet it – someone agreeable to the Senate opposition. Can we count on that from Trump? No, but the stench and stain will remain, and there will be payback. Count on it.


                    5. “By the way, Garland was easily confirmed for his District Court seat and received much praise from GOP Senators at that time. ”

                      Republicans are much more generous and accepting of the rule of law. Dems are full of people like you where lying and cursing are considered normal. Those are the good ones. The others are busy rioting, stealing and burning down communities.

                    6. Try to keep up Deco. The Senate in 2016 purposefully failed to advise and consent – that means they didn’t hold a hearing, which is their duty – for a stated reason they are now proving was a complete fabrication. You know, stinking, lying BS.

                      Any other questions?

                    7. Book Blathers: “Try to keep up Deco. The Senate in 2016 purposefully failed to advise and consent – that means they didn’t hold a hearing, which is their duty –”

                      Since you aspire to be a lawyer, Book, please tell me which part of the Constitution expressly imposes a ‘duty’ on the Senate to hold hearings. You know, the part that uses the words ‘duty to hold a hearing’.

                      You spend enough time commenting here you could easily go to law school and find out what you think you are talking about.

                    8. Careful Young, btb thinks he is a genius accountant. He does his own taxes. That beats me. I can’t do my own. I need a bunch of people to do the job.

                    9. Try to keep up Deco. The Senate in 2016 purposefully failed to advise and consent – that means they didn’t hold a hearing, which is their duty – for a stated reason they are now proving was a complete fabrication. You know, stinking, lying BS.

                      Any other questions?

                      There is constitutional text and there is discussion in Federalist 75 and Federalist 76. The trouble for you is that they do not buttress the argument you’re trying to make.

                      And doesn’t seem to occur to you that prior to the 2d World War, Congress was not in session 1/2 the time and would be out of town for periods as long as nine months.

                    10. By the way, Garland was easily confirmed for his District Court seat and received much praise from GOP Senators at that time. I

                      He was an appeals court judge and about 1/2 the Republican caucus voted against him. NB, there wasn’t much effort invested in obstructing lower court nominees during the period running from 1987 to 2001. When Patrick Leahy took over the Senate Judiciary Committee, he made systematic efforts at gumming up the works. Among his expedients: not scheduling hearings. John Roberts nomination to the DC circuit was put on ice with this method.

                    11. Cons are full of people like you, Allan, where lying and cursing are considered normal. Those are the good ones. The white supremacists are busy as domestic terrorists.

          2. I didn’t evade anything, Kurtz. I made the point I wanted to make. You made the point you wanted to make. Me not making your point for you doesn’t constitute evasion.

            1. Dear Byedabook, Fishbreath, NeedToBeCommited…..Do the 3 of you do a 4 way? Since you 3 keep commenting one after the other, it stands to ask: which of the 3 of you is the passive one, the man/shim in the middle and the bull pitcher who shoots blanks?

            2. Commit — “Me (sic) not making your point for you doesn’t constitute evasion.”

              Gerund. Shouldn’t that be possessive? ‘My’ instead of ‘me’?

              At the very least, it shouldn’t be the objective case if it is the subject of the sentence.

        2. That was consistent with the powers given the Senate by the Constitution and consistent with the Senate’s own rules.

          Abusive is Harry Reid who slanders Romney on the floor so he can’t be sued. Then he admits it was intentional slander by saying something similar to ‘ it worked didn’t it’?

      2. Nah. McConnell simply followed the Biden rule that says it makes no sense to put a Judge and the entire system through a process where we all know the outcome. During an election year where the Senate and Presidency are divided there is no way for the nominee to get through. It’s as simple as that, but thanks for trying.

        1. You don’t know what you’re talking about, do you Ivan?

          ” a June 1992 speech by then-senator Joe Biden, in which Biden argued that President Bush should wait until after the election to appoint a replacement if a Supreme Court seat became vacant during the summer or should appoint a moderate acceptable to the then-Democratic Senate, as a precedent. “

        2. Using your logic, no justice could EVER be confirmed in ANY year if the presidency and senate are held by different parties. Limiting it election years is arbitrary. In fact, why have the senate vote on anything? Just let the Senate Majority Leader dictate, cuz “we all know the outcome”.

          Do you understand how silly you sound now?

        3. Don’t lie and call your claim “the Biden rule” when that’s not what Biden actually argued.

          And you didn’t know the outcome. That’s actually why McConnell prevented hearings and a vote: he wasn’t sure that Garland would be rejected if there were a vote.

          Lastly, it’s absolutely possible for a nominee “to get through” in “an election year where the Senate and Presidency are divided.” For example, Fuller was nominated by a Democrat and confirmed by a Republican-majority Senate in an election year.

          1. And you didn’t know the outcome.

            I know it now. Do you have a constitutional point to make? If not, then all you’re doing is whining.

            1. Olly, do you likewise think that you are “whining” since you weren’t making a constitutional point? How about your buddies here: were they “whining” when they posted comments that weren’t making a constitutional point?

              1. do you likewise think that you are “whining” since you weren’t making a constitutional point?

                Nope. Our entire argument is rooted in the constitution, while yours is not.

                1. No, Olly, your comment wasn’t making “a constitutional point.”

                  And comments from your friend Mespo (for example) often consist of nothing more than insults.

                  1. Commit — Have you noticed that a significant portion of your comments consist of complaining about being insulted by someone? Lots of triggering on your end, I think.

                    1. I think the folks at Correct-the-Record told Gainesville to be sure to stay in character.

                    2. Needs to be Committed and btb have a lot in common. Stupidity is one. Constantly repeating lies is another. BTB specializes in 4 letter words and the other specializes in crying. The latter two are more typical of the sex they say they are. Btb is definitely male based on good knowledge. Want to guess on the sex of the other?

                    3. Allan Needs to be Committed. He and his friends have a lot in common. Stupidity is one. Constantly repeating lies is another. They also specialize in whining.

                2. Olly, you don’t have an argument because no one other than the 2016 GOP said there was a reason to not advise and consent on a Presidential SC nominee, and that was 8 months before an election, not 1 month.

                  1. You silly kids. There is not one angle you can argue that will overcome the power the Senate exercised. I know, you feel it’s not fair, but unless you can point out where it was unconstitutional, then it’s as fair as it deserved.

                    1. “Fair” and “constitutional” aren’t synonyms, Olly.
                      Do you generally assume that “constitutional” implies “fair”?

                    2. I see that you can’t bring yourself to answer the question.

                      And your claim “unless you can point out where it was unconstitutional, then it’s as fair as it deserved” is your personal opinion, not a “constitutional argument.”

                    3. Commit- Do you generally assume that “constitutional” implies “fair”?

                      Nobody would answer that. It is a silly question meant only to annoy.

                    4. Committed:

                      “Fair” and “constitutional” aren’t synonyms, Olly.
                      Do you generally assume that “constitutional” implies “fair”?”
                      What a hopelessly dumb or naive question? Of course not, Commit. Even basic law doesn’t imply “fair” (whatever that is from a given vantage point); though equity might be.

                      Every lawyer knows that showing me you’re no lawyer. Impoverished widows get evicted all the time; innocent kids get separated from their jail-going parents daily and sovereign immunity is alive and well preventing justice as you might define it — and there are damn good reasons for all of it. Law isn’t about morals; it’s about a practical system whereby we can live with each other. Sometimes it tracks with morality, sometimes ethics and always with lubricating the societal gears to insure our protection from foreign enemies and each other. Instead of preening about things you know nothing about, why not listen to the real lawyers here and try to learn.

                    5. CTHD admitted she was not a lawyer last week

                      anyhow like Mespo said, fairness only comes up with equity — but also “due process” which is a concept that pertains to individual trials

                      it does not for a second mean that a party can’t exercise its constitutional prerogatives

                    6. Mespo, I hope that Olly reads your response and recognizes it as a criticism of his opinion that “unless you can point out where it was unconstitutional, then it’s as fair as it deserved.”

                    7. And it has implications for your claim, Olly, despite your desire to ignore them.

          2. rule number one is get the money first
            rule number two is dont forget the money first

            “fair” is not the operative principle here


            1. Kurtz– Words of a seasoned lawyer. oddly, nobody mentioned those two main rules in law school. You learn them quickly enough though.

      3. Commit — So the Senate should have held hearings

        The Constitution does not require hearings.

          1. Art – That’s interesting. I didn’t know that. If in 1914 they had a hearing like the Kavanaugh hearing we wouldn’t be expecting them now. It seems like hearings have simply become an opportunity for politicians in both parties to jump on tables, turn around and moon America. I have had enough of all of them.

  12. I count 16 if I ignore the recess appointment and all appointments made after the first Tuesday in Nov.

  13. This is great stuff. All you need to know about what the modern Democratic party stands for is on display in this blog. They are in a full-blown panic because they are on the verge of having their 50 year effort to radically transform this country die the death it deserves. When they couldn’t manufacture a constitutional reason to remove this president from office, they made a conscious decision to begin burning this country to the ground, literally. How far left have they moved? At one point in time, not that long ago, Jonathan Turley was their voice on the law. Now he’s vilified by the Left. Turley still calls balls and strikes the same as he did when I first started following him during Obama’s first term. He still leans left more than I prefer, but he hasn’t move an inch on the law. And this has driven the Left insane.

        1. Ask anyone in the world who made America insane, they would say it’s willful ignorant Trump supporters.

          1. I strike that comment. I had forgotten President Trump earned 2 Noble Peace Prize nominations while the Hope & Chain guy from Hawaii did absolultely nothing for the world other than make it more dangerous…and making Law Enforcement Officers victims of crime

  14. 16, 30, it’s a distinction without a difference. The point is that this nomination is NOT unprecedented, and the vote will NOT be illegal or unethical. The interesting thing is that the radicals are pinning so much on flaky “unprecedented” arguments when just being honest and stating why they don’t want another conservative on the court might actually be more effective at shaping public opinion. Why are radicals wasting time on bogus technical arguments? Maybe because radicals themselves suspect most Americans would not have a problem with another conservative on the Court??

    1. Now I realize why the radicals are framing the nomination as “unprecedented.” Democrats could lose Florida if they bash Lagoa, a Hispanic Floridian–who will likely be the nominee. Democrats instead are attacking the idea of even having a nomination as “unprecedented” to avoid that dilemma.

      1. Lagoa has already been doing her part to help Republicans win FL. In 2018, Floridians voted overwhelmingly to allow ex-felons to vote after they’d completed their probationary period. The Republican-majority FL legislature then enacted a law saying that they couldn’t vote until they’d paid off any fines/fees they owed, despite the fact that the state doesn’t even have a centralized system that allows people to look up whether they owe the state money and if so, how much. That law was challenged and initially struck down as a poll tax, but the ruling was appealed and Lagoa was among those who reversed on appeal. This disenfranchises a huge number of Floridians. She will absolutely be questioned about her ruling.

        BTW, if anyone wants to help people regain the right to vote by helping pay fees/fines that are owed, here’s an organization that does this:

        They’ve raised over $20 million so far. “The money is targeted for felons who registered to vote while the law was in question and who owe $1,500 or less. That accounts for about 31,100 people” — https://www.theguardian.com/us-news/2020/sep/22/mike-bloomberg-florida-felons-vote-election

        1. what an awful awful idea letting felons vote. only Democrats would champion tomfoolery like that

          thanks for letting me know Lagoa was against it. her stock went up

          1. Agreed: an estimated 68% of released prisoners were arrested within 3 years, 79% within 6 years, and 83% within 9 years. At a very minimum, the rule should be two felony convictions and no more vote, period. That would be fair, and the vast majority would not be able to vote anyway.

            1. about the only felons who should get a revote are PCS and DUI felons. i would be willing to consider letting them vote

              the rest can fugheddaboudit

              think about it. you want a person to vote, who has committed murder? maybe they will use their vote to murder you

              how about burglars, thieves, and robbers. we KNOW they will use their vote to rob us more in taxes

              how about chomos? child molesters? they will vote to lower the age of consent and erase their crimes

              how about crooks in general. what sort of slogan they might get behind? let me see…… DEFUND THE POLICE!



              1. i can’t think of a better thing for Mikey to waste his money on than helping the State of Florida clear these fines


                if he thinks a bunch of crooks are gonna turn out just cuz he paid their fines he must not have much experience with common criminals

                it gives you an idea both of how stupid a smart man can be, and also, what a cretin. Democrats love the criminals.

          2. “what an awful awful idea letting felons vote”

            They served their sentences.
            Do you think they should permanently lose their free speech and freedom or religion rights too?

            1. They don’t permanently lose their right to vote [much less speech, freedom, or religion]. A felon who shows good behavior can apply to the court to have his voting rights restored. By the way, not all felons have served their sentences. Some are still serving them.

            2. no just their right to vote and own firearms

              felons are bad guys, you ought to meet some if you are befuddled about that. i have known a few in my time

              1. Former felons in FL were permanently disenfranchised, unlike in most states. WHY do you think that’s just?

                The 2018 vote changed the law to reenfranchise them after they’d completed their sentence + probation, with the exception of murderers and those convicted of a sexual offense, who remain permanently disenfranchised unless the State Clemency Board reinstates their right to vote. But they must now pay off their fines/fees, and that’s what these funds help with.

                1. your idea of justice and mine are different. i have a more ancient view of justice. it’s very simple

                  what is good for the nation is what is just. what is bad for it is unjust

                  it is bad for us to enfranchise the criminals who have shown no respect for laws and been caught and convicted of harming others.

                  they have proven that they are unfit and it is foolish naivete to think they are rehabilitated just because they serve a term of years.

                  it is good for us to exclude them. it is for the good of society. they will be tempted to steal from us all via their vote, for example. I spelled it out before

                  i know this line of thinking will immediately trigger you and all your slogans etc.

                  in the fever dreams of the Enlightenment, that is somehow naughty.

                  Well, I banish the empty slogans and bromides of the Enlightenment era. I cancel the naïve.

                  I exist in the world of flesh and bone and not mere ideas

                  1. So you want other states to change their laws to permanently disenfranchise former felons. Ok.

                    “I know …”

                    No, you mistakenly believe and confuse your beliefs with knowledge.

                    1. i have read hundreds of your comments and i understand very well that you accept the usual naivete about criminals and probably accept this preposterous notion they should vote. am i wrong that you wish them to vote? If not come clear

                      of course the states that have enfranchised them have done so foolishly and should change their laws. but we can see some states like New York and California are full to the brim with voters who have been tricked into things that are not in the best interests of society.

                      This is the work of centi-billionaires like Bloomberg, who today has outshone Soros with his wickedness and evil works against the good of society

              2. Kurtz, has Needs to be Committed ever lamented over an individual police officer that was killed in the line of duty or an individual civilian that was killed for no reason at all? I’m not talking about those meaningless responses of how terrible it is for anyone to be killed. I’m looking for balance where a policeman or civilian gets near the same concern as a George Floyd who was a criminal and likely died from the drugs he took.

                I don’t see that and it tells one alot about who and what Needs to be Committed actually is.

                1. It is unfortunate that George Floyd died of drugs or suffocation or whatever combination. It would have been better for him to get some medical treatment and then live and be tried for his crime of passing a counterfeit bill. of course resisting arrest did not help the police understand his medical crisis. but, he was high, so he probably didn’t understand it himself. don’t take drugs kids, you might end up like George Floyd.

                  also, it would be even more unfortunate if police are convicted for an offense they did not committ. It will be up to the jury to try the evidence.

                  We can be sure they will riot again if they are not convicted. All these rioters should be arrested and their votes cancelled too.

                  Every single BLM and ANTIFA rioter looter and arsonist, ever single one that has thrown rocks at cops or spat upon them, should all be tried and convicted of their crimes and lose their worthless and idiotic votes. It would be for the good of society

                  Law and order is for the good of society. Riots are not. The pack of sophisticated lies that we have been taught to accept are fading like dreams after awakening. People will decide come the election: are they for rule by riot and intimidation? if so vote Democrat

                  if they are for law and order, vote Republican, vote Red, the color of our shared blood and humanity, which flourishes under ordered liberty, and bleeds in chaos.

                  1. Here is the sort who Mikey Bloomberg wants to vote


                    [image of infamous rioter dancing in the flames of minneapolis]

                    this is who Mikey Bloomberg wants to use to DILUTE any majority that might limit or imperil his centi-billionaire fantasies of conquest

                    only a strong working and middle class united can save America now from the schemes of these nation wrecking plutocrats

                    they aim to use these rioters and looters to subdue us

                    there is one single thing we all can do to send a clear message vetoing Mikey’s selfish schemes

                    VOTE TRUMP

              3. Kurtz — When I was much young I was frankly shocked at how innately bad some felons are. Some were stupid and bad and a few were smart and very bad. Interesting to talk with so long as their hunting tiger eyes didn’t land on you.

  15. How does any of this explain away the fact that Lindsey Graham said, publicly, in at least TWO different interviews in 2016, that if a SCOTUS vacancy came up in 2020, there would be no nomination or vote until after the election? He told the interviewer to hold him to it. Or, more critically, how does this explain away McConnell saying that in the last year of a presidential term, if there is a vacancy, the voters should choose the President and the President should choose the nominee because it is a lifetime appointment? It doesn’t. Pure hypocrisy. Trying to justify denying Barak Obama the nomination of Merrick Garland after Scalia died. What explanation do you have for that about-face, Turley? You don’t, so you try to cite statistics to give Republicans cover, but you still want to be viewed as both credible and non-partisan. This issue exposes you for what you really are. What about politicians being held to their word, Turley–doesn’t that matter any more? Add the fact that Trump cheated to get in office, lost the popular vote, that he’s never garnered even a 50% approval rating since occupying the White House, that he’s behind in the polls, as are many Republicans, and you see the Republican Party for what it is–power hungry dinosaurs who will do anything to get and hold onto power and who couldn’t care less about the will of the American people. Polling shows that even most Republicans believe that there should be no nomination or vote until after the election.

    Also, there’s the fact that this is another chance for Turley to take a pot shot at media that doesn’t support Trump. He is strangely silent about all of the lying that comes from Fox, however. How sad that Turley has squandered whatever credibility he may once have had for Trump.

    1. Here’s the explanation Natacha. Obama did not have a democrat senate. If he had, they would have confirmed Garland. Trump has a republican senate and most certainly will AND should nominate and confirm RBG’s replacement.

      1. G, trust me, they understand it. They just don’t care. The “dialogue” is not; it is all argumentation

      2. That is a cover lie made up by Kellyanne to explain away the hypocrisy of denying the American people their choice for filling the seat left vacant by Scalia, who died in February before the November election. When did McConnell or Graham qualify their positions in this manner? The point is that McConnell and Graham both said that when a vacancy occurs this close to a presidential election, the voters should choose the president and the president should choose the nominee. The fact that it has happened before doesn’t change this philosophy.

    2. Natch says to Turley: “This issue exposes you for what you really are”

      and every additional comment from Natch exposes her for an angry harridan ever ready to vomit out some stinking bile

      I think every time see personal insults levied at Turley, I will share one of my own

      the incredible gall and chutzpah of the Democratic leadership Chee leaders to come on here every day and insult this guy

      how about when you show up on someone’s doorstep you engage in courteous criticism instead of puking out one stream of acid vomit after another?

      1. how about when you show up on someone’s doorstep you engage in courteous criticism instead of puking out one stream of acid vomit after another?

        I’m wagering both Natacha and Isaac have chuckle-worthy medical and psychiatric records. What’s the over-under on the number of psychotropics they’re on?

        1. I think a lot of these Democrat cheerleaders are often perfectly sane, merely focused, vindictive, amoral team players
          they are shameless, like salesmen, ever interrupting someone’s day with another pitch out of nowhere

          much as I dislike them, i wonder, maybe Republicans need more cheerleaders and salesmen too. build a wumao internet chattering army of our own

  16. So what, Turley? You’re just trying to rationalize your standing down on the issue of proceeding fairly. Great job branding yourself — it obviously pays off for you. But this is just you dredging up excuses to try to live with your poor decisions that I have to think keep you up at night. Yay team mediocrity!! Yay stepping all over the Constitution!! It’ll get you on the air and provide a nice paycheck no doubt…, but I have to think the young Turley would be beyond disgusted at where you’ve put yourself.

    1. Since when is stating accurate facts unfair. It is not Professor Turley’s fault Justice Ginsberg died when she did thus allowing for this totally constitutional process of naming her successor to occur.

    2. Turley has forgotten more of what he knows about the constitution by dinner time than you will ever know bug and he’s still a foremost expert

    3. Turley is a strict constitutionalist. Unlike you, he doesn’t try to twist the document to meet his personal desires.

  17. Why should the NYtimes explain anything they write…. after all they were for the filibuster before they became suddenly Against it, And before that they were against it, before that they were for it, before That they were against it. I expect they will be for it again if trump is reflected and the senate remains republican.

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