Fact Check: Joe Biden Claims Supreme Court Justice Has Never Been ‘Installed’ While Voting ‘Underway’

Biden Barrett presser (Alex Wong / Getty)
Alex Wong / Getty

CLAIM: “Never before in our nation’s history has a Supreme Court justice been nominated and installed while a presidential election is already underway.” – Joe Biden, Sep. 27, 2020.

VERDICT: MISLEADING. That is largely a function of the rise of early voting.

Biden claimed Sunday morning that President Donald Trump’s effort to nominate Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg was illegitimate because it was the first time a Supreme Court justice had been “nominated and installed while a presidential election is already underway.”

It would have been absurd, until recently, to nominate and install a justice while people were voting — because voting was only on Election Day. Now it takes months.

As Vox.com noted in 2016, there is a growing trend toward early voting — and that was before the coronavirus pandemic:

There has been tremendous growth in early voting opportunities in the past two election cycles. Even so, there have been attempts to roll back the reform.

States like North Carolina and Ohio have become early voting battlegrounds, where Republican-controlled state legislatures have tried to cut in-person early voting days, which tend to favor Democrats. Advocates for reducing early voting argue it leads to more voter fraud, though there is no substantive evidence that voter fraud is a problem. In 2014, the US Government Accountability Office concluded that the rate of voter fraud is between 0.1 percent and zero percent.

And according to Clark, voter fraud is more common with mail-in ballots — which are not being contested — rather than in-person voting. In North Carolina, Republican lawmakers were even making the argument that voters could die between their early vote and Election Day.

Early voting has expanded in 2020, with many states adopting vote-by-mail for the first time, ostensibly to reduce the risk of transmitting the virus in polling places.

Biden noted Sunday morning that some 100,000 or so people have already cast their votes. That is before the first presidential debate.

What Biden failed to note is that there have been 29 Supreme Court vacancies in presidential election years. As Dam McLaughlin noted at National Review (original emphasis):

Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.

Biden’s point is that a nomination and confirmation have never occurred during voting. But then, voting never took so long.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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