In remarks following the death of Associate Justice Ruth Bader Ginsburg, Democratic presidential nominee Joe Biden made several false and exaggerated claims while arguing that the Senate should wait until after the Nov. 3 election to let the next president choose her Supreme Court replacement.
- Biden falsely claimed that “there’s no court session between now and the end of this election.” The next Supreme Court session begins Oct. 5, nearly a full month before Election Day.
- Biden said, “I think the fastest justice ever confirmed was 47 days.” That’s false; since 1975, the shortest time from formal nomination to confirmation was 19 days.
- Biden exaggerated when he said that 30% to 40% of Americans “will have voted by Oct. 1.” His campaign later told us he meant by Nov. 1 — two days before Election Day.
- He also wrongly claimed the Trump campaign asked him to release a list of potential Supreme Court picks “only after” Ginsburg’s passing. President Donald Trump and his campaign had called on Biden to produce such a list prior to her death.
Biden made those claims on Sept. 18, shortly after the public learned of Ginsburg’s passing, and on Sept. 20, during a speech at the National Constitution Center in Philadelphia.
Next Supreme Court Term
In arguing that voters should be given a “chance to have their voice heard in who serves on the court,” Biden suggested in his Sept. 20 remarks that naming someone to replace Ginsburg could wait until after the election because “there’s no court session between now and the end of this election.”
That’s wrong; the next Supreme Court session begins Oct. 5, nearly one month before Election Day on Nov. 3. The justices are already scheduled to hear oral arguments in several cases between those two dates.
Fastest Supreme Court Confirmations
In remarks two days earlier, Biden similarly argued the Senate should hold off on confirming a new justice until after voters choose the next president.
Biden, Sept: 18: Let me be clear that the voters should pick the president, and the president should pick the justice for the Senate to consider. This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position the United States Senate must take today. And the election is only 46 days off. I think the fastest justice ever confirmed was 47 days, and the average is closer to 70 days.
But Biden’s claim about the fastest confirmation was also wrong.
According to a September 2018 Congressional Research Service report, since 1975, three Supreme Court nominees were confirmed in fewer than 47 days from the time their names were formally sent to the Senate for consideration.
The late Associate Justice John Paul Stevens was confirmed in 19 days in 1975; former Associate Justice Sandra Day O’Connor was confirmed in 33 days in 1981, and Ginsburg was confirmed in 42 days in 1993.
At the time of its report, the CRS did note that of the 15 Supreme Court nominees since 1975 who had received a final floor vote, “the average number of days from nomination to final Senate vote is 69.6 days (or approximately 2.3 months), while the median is 69.0 days.”
The CRS list did not include Associate Justice Brett Kavanaugh, who was confirmed in October 2018. Kavanaugh’s confirmation vote came 88 days after he was formally nominated by Trump on July 10.
Trump has said he plans to announce a nominee to replace Ginsburg on Sept. 25 or Sept. 26.
Biden Misspeaks on Early Voters
Biden exaggerated in his Sept. 20 remarks when he argued the Senate should wait because 30% to 40% of Americans “will have voted by Oct. 1.”
Biden, Sept. 20: Now, having lost Justice Ginsburg less than seven weeks before the election this year, after Americans have already begun to cast their vote. It’s estimated that up to 40% of Americans will have voted by Oct. 1, but at least 30%. Tens of millions.
The Biden campaign said the former vice president was referring to the estimated percentage of Americans who vote early — admitting that Biden misspoke when he said Oct. 1. He meant Nov. 1.
That is a more plausible date. In 2016, more than 41% of all ballots were cast before Election Day, according to the U.S. Election Assistance Commission.
Michael McDonald, a University of Florida professor who tracks early voting statistics, said it’s unlikely that 30% to 40% of Americans would have voted by Oct. 1. As of Sept. 21, at least 165,000 voters have cast their ballots, according to McDonald, although he notes that the data are incomplete because some states do not publicly report early voting statistics. By Oct. 2, 2016, at least 74,836 had voted early.
“I would be surprised if we have 30-40% of all votes cast by October 1,” McDonald told us in an email. “We do seem to be running ahead of past elections, but in past elections, early voting peaks as we approach Election Day. Furthermore, some states will not have started sending mail ballots to voters by October 1.”
Oct. 1 is 33 days from the Nov. 3 election. According to the National Conference of State Legislatures, some states begin early voting as early as 45 days out, but the average starting time is 22 days. Some of the biggest states — such as California, New York, Texas, Ohio and Massachusetts — don’t start voting early until after Oct. 1, according to the NCSL.
Even if Biden meant Nov. 1, that’s just two days before the Nov. 3 election.
List of Potential Nominees
Also in his Sept. 20 speech, Biden falsely claimed the Trump campaign began requesting that Biden release a list of people he might nominate to the Supreme Court after Ginsburg died.
“We can’t keep rewriting history, scrambling norms, ignoring our cherished system of checks and balances,” Biden said. “That includes this whole business of releasing a list of potential nominees that I would put forward. They’re now saying, after Ruth Bader Ginsburg passed away, they said, ‘Biden should release his list.’ It’s no wonder the Trump campaign asked that I release the list only after she passed away. It’s a game for them. It’s a play to up emotions and anger.”
Trump and his campaign had asked Biden to release a list before Sept. 18.
On Sept. 9, the Trump campaign released a list of 20 more people Trump said he would consider nominating to the court if any vacancies occurred “in the coming months or in a second term.” Trump released a similar list of 21 names during the 2016 presidential campaign.
In a press release announcing Trump’s latest list, his 2020 campaign manager, Bill Stepien, said: “Voters deserve transparency and a clear view of what direction candidates for president would take our federal courts. We now forcefully demand that Joe Biden do the same.”
Trump himself had called on Biden to release his list even earlier. In an Aug. 24 speech at the Republican National Convention, Trump said: “And remember this, I’m saying that — I’m demanding actually, a list. Let Biden put up a list of the judges he’s going to appoint.”
And when Trump’s new list was released earlier this month, he again called on Biden to do the same.
“Should there be another vacancy on the Supreme Court during my presidency, my nominee will come from the names I have shared with the American public, including the original list and these 20 additions,” Trump said in Sept. 9 remarks from the White House. “Joe Biden has refused to release his list, perhaps because he knows the names are so extremely far left that they could never withstand public scrutiny or receive acceptance. He must release a list of justices for people to properly make a decision as to how they will vote. It is very important that he do so.”
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