Did Donald Trump Tweet in 2016 That President Obama Should Wait to Pick a New Supreme Court Justice or ‘Be Fired’?

Claim

Donald Trump tweeted, "Obama should wait until he leaves office to pick another Justice! If he doesn't, he should be fired!" in April 2016.

Rating

Not True

Reporting

After the September 2020 death of Supreme Court Justice Ruth Bader Ginsberg, amidst the chatter of a possible replacement and what that might mean for the future of the United States, a screenshot of a tweet began circulating which attributed commentary to then-presidential candidate Donald Trump about the death of Justice Antonin Scalia during the 2016 election year:

The purported tweet was dated April 3 2016:

Obama should wait until he leaves office to pick another Justice! If he doesn’t, he should be fired!

Iterations were shared on Fark.com and Twitter:

Another popular iteration appeared on Reddit’s r/facepalm:

from facepalm

Context

Supreme Court appointments are for life. Ginsburg’s September 2020 death in such a politicized year led to immediate discourse and debate about the looming November 3 2020 election, and the prospect of seating a successor.

When Scalia died in February 2016, Republican lawmakers insisted the vacancy not be filled until after the 2016 election — then more than seven months away — occurred. President Obama nominated Merrick Garland, but Scalia’s seat was not filled until 2017 — by Neil Gorsuch:

Justice Antonin Scalia died on February 13, 2016, at 79 years of age. A member of the U.S. Supreme Court for three decades, Scalia was considered a champion of originalism and the dominant conservative voice of the court.

His unexpected death created a vacancy in the Supreme Court. Several members of the U.S. Senate quickly made public comments on whether President Barack Obama (D) should nominate a replacement. U.S. Sen. Patrick Leahy (D-Vt.) said, “The American people deserve to have a fully functioning Supreme Court. The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons. It is only February. The president and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”

Some leading Republicans suggested that the individual elected to the presidency in November 2016 should have the right to make the nomination. U.S. Sen. Majority Leader Mitch McConnell (R-Ky.) said in a statement: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”[3] A spokesperson for U.S. Sen. Mike Lee (R-Utah), Conn Carroll, tweeted, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?”[4]

Senate Minority Leader Harry Reid (D-Nev.) charged, “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”

[…]

In accordance with the sine die adjournment of the 114th Congress, Judge Garland’s nomination was returned to President Obama. 294 days passed between Judge Garland’s nomination on March 16, 2016, and the return of his nomination on January 3, 2017. The 294-day period set a record for the longest interval from nomination to Senate action for any Supreme Court nominee, besting the 125-day interval attending Justice Louis Brandeis’ nomination in 1916.

On January 31, 2017, President Donald Trump nominated Neil Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court.

In the days following Ginsburg’s death, video clips and other media showing Republican lawmakers opposing a Supreme Court nomination during an election year circulated virally, including one in which Sen. Lindsey Graham requested his words be “used against” him should a vacancy arise on the Supreme Court in 2020:

That clip was not entirely straightforward for a few reasons. Graham described President Barack Obama at the time as a “lame duck” president, referencing the fact that he was ineligible to run or be elected president in 2016; Trump was, as of Ginsburg’s death, running an active campaign for re-election in 2020.

Graham or those concurring with him could argue that Trump might be re-elected, and the term “lame duck” could not apply until after the November 3 2020 election. However, Graham’s specific statement included wiggle room:

This [2016] is the last year of a lame duck president. And if Ted Cruz or Donald Trump get to be president, they’ve all asked us not to confirm or take up a selection by President Obama. So if a vacancy occurs in their last year of their first term, guess what? You will use their words against them. I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say “Lindsey Graham said, let’s let the next president whoever it might be, make that nomination.” And you could use my words against me and you’d be absolutely right. We are setting a precedent here today, Republicans are, that in the last year at least of a lame duck eight year term, I would say is going to be a four year term, that you’re not going to fill a vacancy of the Supreme Court based on what we’re doing here today.

Though Graham specifically mentioned Obama’s final year of an eight-year, two-term administration, he also explicitly said that a “vacancy [which] occurs in the last year of the first term” (2016) would be a time during which his words could be used against him.

The Tweet Attributed to Trump

In the screenshot, Trump purportedly said:

Obama should wait until he leaves office to pick another Justice! If he doesn’t, he should be fired!

Twitter Advanced Search using a date range of April 2 to April 4 2016 for all tweets from the account @realdonaldtrump returned no results; in fact, in that two-day span, Trump did tweet Obama’s name once.

A separate search for the wording of the tweet returned nothing. Nor did a database of Trump’s deleted tweets, and no other residue of that tweet or combination of words appeared before September 22 2020.

TL;DR

Amid discourse over election year vacancies in 2016 (Scalia) and 2020 (Ginsburg), a tweet appeared, attributed to Donald Trump. It appeared to suggest that he said that “Obama should wait until he leaves office to pick another Justice,” and if “he doesn’t, he should be fired!” The tweet was fabricated, like many others circulating alongside comments that “there’s always a tweet” contradicting Donald Trump.

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