BISMARCK — Sens. John Hoeven and Kevin Cramer, both North Dakota Republicans, say they want to vote on a new U.S. Supreme Court nominee before the decisive 2020 presidential election.
President Donald Trump is expected to put forth a politically conservative nominee later this week to replace Justice Ruth Bader Ginsburg, a longtime liberal anchor of the court who died Friday, Sept. 18.
Democrats are calling foul on a vote to confirm a new justice just six weeks from a presidential election that could swing Washington's partisan balance in their favor. Republicans currently hold the U.S. Senate and the presidency, the two government bodies that get a say in a new justice.
Senate Democrats point to President Barack Obama's nomination of Merrick Garland to the Supreme Court as an example of why it would be improper to vote on a nominee in an election year. Obama nominated Garland in March 2016, eight months before a presidential election, and the Republican-held Senate opted not to hold any hearings or vote on the nomination, citing the closeness of the upcoming election. Republicans eventually confirmed conservative Trump pick Neil Gorsuch in February 2017.
Hoeven, who joined fellow Republicans in denying Garland a hearing, said in 2016 that "there is 80 years of precedent for not nominating and confirming a new justice of the Supreme Court in the final year of a president’s term so that people can have a say in this very important decision." Unlike many other Republican senators, Hoeven met with Garland and said afterwards that he would be the wrong man for the job anyway.
The second-term senator told Forum News Service on Monday the circumstances are not the same now as they were in 2016 when the presidency and Senate were controlled by different parties. Hoeven's reasoning for voting on Trump's eventual nominee mirrors the logic Senate Majority Leader Mitch McConnell forwarded in a statement released immediately after news of Ginsburg's death broke last week.
“When a vacancy occurs on the Supreme Court in an election year and the Presidency and the Senate are controlled by the same party, the precedent has been for the President’s nominee to get a vote on confirmation," Hoeven said in a statement. "That is the case in this election year and we should go forward accordingly."
North Dakota Democratic-NPL Party Chairwoman Kylie Oversen accused Hoeven of hypocritical thinking, noting that the senator advocated for letting the public decide who should nominate a new justice in 2016.
"He’s making an excuse to come to the answer that he wants," Oversen said. "Voting is underway in some states, and at this point, as Sen. Hoeven said in 2016, the voters should have their say.
Since 1892, six Supreme Court picks have been nominated and confirmed in an election year when the same party held the presidency and the Senate, according to Forum News Service research. Most recently, a Democratic-held Senate confirmed Frank Murphy during the last year of Franklin Delano Roosevelt's second term in January 1940. Justice Anthony Kennedy was confirmed in 1988, an election year, though President Ronald Reagan nominated him to fill the vacancy the year prior.
However, there's also an old precedent for voting on and confirming a nominee in an election year when the executive branch and Senate are controlled by different parties. A Republican-held Senate confirmed Grover Cleveland nominee Melville Fuller in July 1888 despite Cleveland's Democratic party affiliation.
Many historians and legal scholars view the failed confirmation of Robert Bork in 1987 as the moment the process became heavily politicized. Senate Democrats blocked Bork's confirmation after harsh criticism of the conservative judge's character in contentious hearings.
Cramer said he supports "whichever path forward gives us the best opportunity to confirm a conservative justice" in what will be the senator's first vote on a Supreme Court nominee.
"The Republic and its institutions are now at stake, and I did not run for the Senate and put my family through a grueling campaign just to shrink from a moment like this," Cramer said in a statement. "President Trump is set to fulfill his constitutional duty, and the Senate should do the same.”
Cramer called the anticipated Senate confirmation process "the greatest responsibility I've been given," adding that if the Democrats take back the presidency and the Senate, they would "pack the courts" with liberal judges.
Senate Republicans are not unanimous in wanting to vote on a Trump nominee before the election. Sens. Susan Collins and Lisa Murkowski have said they would oppose a vote this close to an election, according to the Washington Post. Republicans currently hold 53 of the 100 seats in the Senate. A simple majority of senators is needed to confirm a new justice.