Sen. Tina Smith, Jason Lewis spar over Supreme Court vacancy

The heated politics of the U.S. Supreme Court vacancy are spilling into Minnesota's Senate race, with U.S. Sen. Tina Smith and Republican challenger Jason Lewis pressing opposite views on an issue that could reframe the presidential election.

Smith, in an interview Monday, lamented the death of Justice Ruth Bader Ginsburg last week and echoed Democrats across the nation — including Democratic presidential candidate Joe Biden — who believe the Senate should not vote on a successor picked by President Donald Trump before the election.

"I believe so strongly, given everything at stake with this Supreme Court, that the person who wins the election should be the person to choose the next Supreme Court justice," Smith said.

Lewis, a former one-term congressman and one-time radio personality, said the Senate should vote on Trump's nominee as swiftly as possible. He said a nine-member Supreme Court should be in place in time for an election in case it's needed to sort out possible legal fallout from a close race.

"It's not beyond the pale to consider a contested presidential election," Lewis said, citing uncertainty about what's expected to be a much heavier volume of mailed ballots this year. "What are you going to do if it's a four-four tie? The country will have no finality on the presidential race."

With Ginsburg's passing, Republican-appointed justices on the Supreme Court now constitute a 5-3 majority. If Trump's pick is confirmed, it would become a 6-3 majority. Trump has promised to name his pick by the end of the week.

Last month, GOP Minnesota Reps. Tom Emmer and Jim Hagedorn sent Trump a letter endorsing federal Judge David Stras as the next high court pick. Stras is a former Minnesota Supreme Court justice whom Trump elevated to the Eighth Circuit U.S. Court of Appeals in 2017.

But Trump said at a rally Saturday in North Carolina that he planned to nominate a woman to succeed Ginsburg, who was the second woman to join the U.S. Supreme Court.

Republicans now hold 53 Senate seats, and would need just 51 votes in order to advance Trump's appointee.

Democrats have been quick to point out that when Justice Antonin Scalia died in February 2016, that the Senate's Republican majority held the seat vacant until after Trump took office — even though former President Barack Obama nominated federal Judge Merrick Garland.

"They left that seat open for nearly a year," Smith said. "This election is now literally underway. We started voting in Minnesota on Friday." She said it's "hypocrisy of the highest order" for Republicans to now insist on striking before the voters are heard.

Her fellow Minnesota Democrat, Sen. Amy Klobuchar, struck the same message Monday on a "CBS This Morning" appearance. Republicans "made it very clear that if this happens in an election year that whoever wins the election should be able to decide who the Supreme Court justice is," she said.

As a candidate for the U.S. House in 2016, Lewis in March of that year said at a congressional forum that "the United States should not confirm that man (Garland) or anybody until next year."

He said Monday that's not inconsistent.

"The will of the people then was, you had President Obama, who thought he should have prerogative to nominate but you also had a Republican Senate that was elected to check the executive branch. Today it's totally different," Lewis said. "It's apples and oranges."

Smith and Lewis agreed that the next Supreme Court is likely to grapple with a number of important social issues: GOP challenges to the Affordable Care Act, abortion restrictions, same-sex marriage and gun control.

"What's at stake here are basic issues of everyday lives — access to health care and protection for pre-existing conditions, your right to marry the person you love, the question of are your reproductive rights going to be protected," Smith said.

Lewis called Roe v. Wade, which legalized abortion nationwide in 1973, "poorly adjudicated." He said that and same-sex marriage, which the court legalized nationwide in 2015, are decisions better made by individual state legislatures.

"Minnesota handled it just the right way," Lewis said of same-sex marriage, which the Legislature approved here in 2013. "Minnesota voted on it, it's the law of the land, and I have no problem abiding with the law of the land."

Smith pointed out that the guarantees and protections of the Affordable Care Act are under imminent threat in a case headed to the Supreme Court the day after the election. Lewis said he believes a more liberal Supreme Court could open the door for a ruling that the Second Amendment does not guarantee an individual right to gun ownership.

Smith declined to say Monday whether she'd support a move at some point to expand the nine-member Supreme Court, which some on the left have suggested.

If Trump's nomination plays out as Lewis hopes and the Senate votes before Nov. 3, he would not get to vote on the nomination even if he defeats Smith. Still, he said he would not pledge to back whoever Trump picks.

"I would have to see the individual, no matter who the president is that nominates them to the Supreme Court or a lower court," he said.

Patrick Condon • 612-673-4413