Congress has typically approved Supreme Court nominees during presidential election years, contrary to what Sens. Ted Cruz and Marco Rubio are claiming in the wake of the vacancy left by Justice Antonin Scalia Saturday.
"There's a long tradition that you don't do this in an election year," Cruz said Sunday on NBC's "Meet the Press." "We have a long tradition that a lame duck president doesn't get to jam a nominee at the end."
The problem for Cruz and other Republicans is that in nearly every case when the Senate did confirm an election-year nomination, its majority shared the same political party as the president — a far cry from the current, contentious landscape.
Both Cruz and Rubio have taken the side of Senate Majority Leader Mitch McConnell, who said the Senate won't consider any nominee from President Obama to replace Scalia, who passed away from a heart attack over the weekend.
Instead, Senate Republicans plan to wait until next year, when they might have a member of their own party in the White House, to replace Scalia in order to ensure they don't lose a conservative justice from the court.
Cruz and Rubio, both presidential candidates, defend McConnell's decision by insisting there's a long history of avoiding Supreme Court confirmations during an election year.
NBC's "Meet the Press" host Chuck Todd pressed both of them Sunday morning to say why they don't think the Senate should at least go through the process of considering an Obama nominee this year, even if the body ultimately rejects him or her.
"Does the Senate have an obligation to at least go through the process and have a vote?" Todd asked Cruz.
"Not remotely," Cruz responded, saying it's been 80 years since Congress filled a Supreme Court vacancy in an election year.
"The Senate's duty is to advise and consent," Cruz said. "We're advising right now that a lame duck president is not going to be able to tip the balance of the Supreme Court."
Rubio said the Senate has an "obligation" to fill a court vacancy — just not now. "I just don't think it's wise for a president nearing the last few months of his administration to put someone on the court who might be here for 30 years," he said. There are about 11 months left in Obama's presidency.
In just seven cases since 1900 has a president made a nomination to fill a vacant Supreme Court seat during an election year, according to a post by SCOTUS blog. And all but once, the Congress approved the nominee before the election took place.
The only time the Senate didn't confirm a nominee in an election year was when Dwight D. Eisenhower, a Republican, nominated William Brennan to the bench just weeks before the November election. The Democrat-led Senate had already adjourned by the point, but it confirmed Brennan the following year.
The key difference from now is that in nearly all those instances, the president's own party controlled the Senate.
Only once has a Democrat-led Senate approved a nominee from a GOP president in an election year. That occurred in 1988, when the Senate confirmed President Ronald Reagan's pick of Anthony Kennedy.
And the opposite scenario — a Republican-led Senate approving a nominee from a Democratic president — has never occurred, at least since the turn of the century.
Yet that's the situation Senate Republicans currently find themselves in, faced with an empty seat on the court vacated by one of the court's most reliably conservative justices. As Obama isn't likely to nominate anyone they would approve of. They're holding out hope they can win the White House and replace Scalia with someone who will at least keep the court divided between liberals and conservatives instead of swinging it leftward.
Rubio dismissed the example of the Senate confirming Kennedy, noting Reagan nominated the judge in November 1987.
"It doesn't really matter what Reagan did back in '87," Rubio said. "[Obama] now has basically 10 and a half months left in office. With an election coming up, there will be a debate about what the Supreme Court should look like."
"Here's the bottom line," he added. "I don't trust Barack Obama in nominating Supreme Court justices."
Democrats on Sunday slammed the Senate Republicans for their tactics.
"This vacancy may not be convenient for a Republican majority that has already abandoned any intention of governing this election year, but they have a responsibility to our nation," said Lauren Passalacqua, a spokeswoman for the Democratic Senatorial Campaign Committee. "If Mitch McConnell and the GOP caucus follow through on their alarming plan to obstruct this constitutional process, then voters will ensure they will not keep the majority for long."