Toomey cites non-existent precedent for not confirming SCOTUS nominee


U.S. Sen. Pat Toomey, R-Lehigh Valley, said Monday the Senate will shoot down any Supreme Court nomination President Obama makes during his final year in the White House.

Toomey said Obama “certainly has the authority” to nominate a replacement for conservative Justice Antonin Scalia, who died Saturday. But Toomey, who is up for re-election, said it is “common for vacancies that arise on the Supreme Court (in the final year of a presidency) to await the outcome of the next election.”

That depends on the definition of “common.”

When asked for examples, Toomey spokeswoman Melissa Ferdinand pointed to July 2007. Democrats gained control of the Senate earlier that year. Sen. Charles Schumer, D-N.Y., said the Senate would not fill any vacancies on the nation’s High Court except in “extraordinary circumstances.”

But there was no vacancy in 2007 – or any time through the end of Bush presidency.

Schumer also did not rule out a confirmation; rather, he said any nominee by President George W. Bush would need to prove “by actions not words that they are in the mainstream, rather than we (senators) have to prove they are not.”

When asked to square the descrepancies, Ferdinand replied: “It’s worth noting that it has been at least 80 years since a (Supreme Court) vacancy that arose in the last year of a presidency has been filled.”

That’s the standard Republican line at the moment, but it’s also just not so.

As SCOTUSblog noted over the weekend in this post: “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  In that period, there were several nominations and confirmations of Justices during presidential election years.”

Toomey feels “it makes sense to give the American people a more direct say in this critical decision. The next Court appointment should be made by the newly elected president.”

Toomey added: “It has been less than 72 hours since Justice Scalia’s passing. There has already been too much politicking around the issue of his replacement. This decision should not be rushed, and it should not be made amid the clamoring of a presidential election season. We should honor Justice Scalia’s legacy, and we should put off a decision on his replacement until the newly-elected president can make his or her choice.”