FARGO – Sen. John Hoeven, R-N.D., said he has an "open mind" but is still reviewing President Obama's nomination of Jennifer Klemetsrud Puhl to the 8th U.S. Circuit Court of Appeals.
Obama last week nominated Puhl, an assistant U.S. attorney based in Fargo, to the appeals court to fill a vacancy created by Judge Kermit Bye, who has taken senior status, which means he is handling a reduced caseload.
Hoeven said he had forwarded the name of Shon Kaelberer Hastings, the U.S. Bankruptcy Court judge and a former assistant U.S. attorney in Fargo, but Obama instead chose Puhl.
Nonetheless, Hoeven said, "I have an open mind."
The senator said he has an appointment to meet with Puhl in North Dakota later this month.
"I'll interview her and make a decision," Hoeven said. "I'll look at her record."
Historically, few judicial nominees put forward in a president's eighth year win approval, Hoeven said.
President George W. Bush won Senate confirmation of two judicial nominees, President Clinton one and President Reagan two, Hoeven said.
"It's tough to move 'em," he said. "It's particularly tough to move them in the eighth year of a presidency."
A legal scholar who studies the federal judicial selection process also said court nominees can face formidable odds late in a presidency - especially during a presidential election year, when partisanship is heightened.
"It's very late," said Carl Tobias, a professor at the University of Richmond (Va.) School of Law. "It may be too late, but I don't think so."
Tobias noted that Sen. Heidi Heitkamp, D-N.D., is very supportive of Puhl's nomination, but Puhl's fate hinges on what the majority Republicans do. Between 15 and 20 judicial nominees are ahead of Puhl in the queue, Tobias said.
"It depends a lot on what the GOP is willing to do," he said. "That's the nub of it."
If Puhl is not confirmed, there is no guarantee that a future president would nominate someone from North Dakota to fill the vacancy on the 8th Circuit, Tobias said.
"The state needs to have representation on the court," he said.
Republican senators tend to like judicial nominees who have served as federal prosecutors, which could weigh in Puhl's favor, Tobias said.
Myers stays as U.S. attorney
U.S. District Judge Ralph Erickson on Thursday continued the appointment of Chris Myers as U.S. attorney for North Dakota.
Myers has been with the U.S. Attorney's Office for almost 14 years, and served as the first assistant U.S. attorney until being named acting U.S. Attorney last March. Earlier, he was chief assistant Clay County attorney, an assistant Cass County state's attorney and a special agent with the North Dakota Bureau of Criminal Investigation.
Myers will serve as U.S. attorney until the president nominates a new U.S. attorney and the nominee is confirmed by the Senate.