On May 8, 2017, President Trump nominated Justice David Stras of the Minnesota Supreme Court to the Eighth Circuit Court of Appeals. Stras’s nomination has the potential to make a far-right court even more ultraconservative. For the reasons that will be outlined in this report, Alliance for Justice opposes Stras’s nomination.
Stras is nominated to replace Judge Diana Murphy, who took senior status in November 2016. For 19 years (until Jane Kelly was confirmed in 2013), Judge Murphy was the only woman to ever sit on the Eighth Circuit, and Judge Kelly remains the lone woman on the court. Last year, Senate Republicans refused to consider the nomination of Assistant U.S. Attorney Jennifer Puhl for the Eighth Circuit, despite bipartisan support from her home-state senators and the unanimous approval of the Judiciary Committee. There are now three vacancies on the 11-member court, and President Trump has nominated white men to fill them all. Of course, lack of diversity is not sufficient reason to oppose a nomination (just as diversity alone does not compel support for a nominee), but it is vital that our judiciary better reflects the people it serves.
As a longtime member of the Minnesota legal establishment, Justice Stras will undoubtedly garner statements of support from other members of the Minnesota legal community. However, it is vital to understand that such expressions of personal friendship and regional pride do not pertain to critical factors that make an individual suitable for a lifetime appointment to the federal bench. On that score, our report finds Stras’s nomination lacking.
First, the process for selecting Justice Stras was deeply problematic. In May 2016, Donald Trump as a presidential candidate announced a list of potential U.S. Supreme Court nominees, which included Stras. Trump promised that his nominee or nominees to the Supreme Court would “automatically” overturn Roe v. Wade. Stras was ultimately not selected to fill the Supreme Court vacancy, despite support from far-right conservatives.
But Stras remains a candidate-in-waiting, and President Trump decided to tap him for an Eighth Circuit vacancy. And, contrary to custom, the White House did not meaningfully consult with either home state senator, Amy Klobuchar or Al Franken, before putting Stras’s name forward for the seat. As Franken’s spokesperson said, “Let’s be clear: The Trump administration did not meaningfully consult with Sen. Franken prior to Justice Stras’ nomination…Rather than discuss how senators traditionally approached circuit court vacancies or talk about a range of potential candidates, the White House made clear its intention to nominate Justice Stras from the outset.”
The contrast with President Obama’s customary practice could not be starker. For example, when President Obama needed to fill a Tenth Circuit vacancy in Utah—a state, like Minnesota, that had two senators of the other party sitting on the Judiciary Committee—he chose to nominate Carolyn McHugh: a judge who had previously been appointed to Utah’s Court of Appeals by Utah’s Republican governor. And Judge McHugh was only nominated after first being interviewed and recommended by Republican Senators Orrin Hatch and Mike Lee, not by the White House. As McHugh noted:
In January 2013, I submitted a cover letter and resume to Senator Orrin Hatch and to Congressman Jim Matheson for a possible position on the Tenth Circuit. On January 16, 2013, I interviewed with Senator Hatch and Senator Mike Lee, and on January 30, 2013, I interviewed with Congressman Jim Matheson. On February 4, 2013, I was notified by Senator Hatch that he and Senator Lee would be recommending me to the White House for consideration. The following week, I was contacted by an official from the White House Counsel’s Office and interviewed…
Clearly, the process McHugh describes is a far cry from what occurred in Stras’s case, when the White House imposed a conservative ideologue on two members of the Senate Judiciary Committee without engaging in meaningful consultation.
Not only is the process leading to Stras’s nomination concerning, but Stras’s record is also deeply troubling. Throughout his career, Stras has repeatedly showcased his far-right leanings. He has praised Justices Clarence Thomas (for whom he clerked), Samuel Alito and Antonin Scalia, and even wrote a law review article lauding Supreme Court Justice Pierce Butler, who was known as one of the “Four Horsemen” for striking down New Deal laws and who was so extreme he thought Social Security was unconstitutional. As a state Supreme Court justice, Stras has ruled against government transparency, ruled to limit the rights of children with disabilities, and women, and demonstrated that he is not a vigilant protector of voting rights.
There are also serious questions as to his potential partisan biases. Stras wrote an amicus brief on behalf of the Republican governor of Minnesota, who later appointed him to the state supreme court, arguing for tremendously expansive power for the chief executive to unilaterally spend less money than the Democratic-controlled legislature appropriated. As a Supreme Court Justice, he then sided with the Republican-controlled legislature in a dispute with the Democratic secretary of state, putting aside his purported commitment to strict textualism to ignore a statute that explicitly gave the secretary of state the authority to set titles for ballot measures. And, he again sided with the Republican legislature in its effort to put on the ballot a measure to make it more difficult for minorities and the elderly to vote, in language that was “phrased to actively deceive and mislead.”
Given the concerns about Stras’s record, it is absolutely vital that he publicly be forthcoming about his views and philosophy. To date, President Trump’s nominees have gone out of their way to be less than candid during the confirmation process: Neil Gorsuch simply refused to answer basic questions. As Linda Greenhouse noted, “[i]f Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing.” John K. Bush, a nominee to the Sixth Circuit, gave such incomplete answers that his own hometown newspaper said he “duck[ed] questions” He went so far as to even avoid answering questions on how he would approach interpretation of the Constitution, saying “my personal views on constitutional interpretation [are] irrelevant.”
Senators must insist that Stras be much more forthcoming. As he himself has written, “At one point, I felt that answering such questions, especially if they pertained to potential cases before the Court, was improper. Now I am not so sure.”
When I first started researching the federal courts about six years ago, my view was very much in line with the “Ginsburg standard” due to the ethical risks raised by a nominee who pre-commits to a particular position before being provided with briefing and a concrete case or controversy. But after reading every confirmation hearing since Justice O’Connor’s and spending approximately eighteen months researching judicial appointments, my view has changed. At least one Senator has referred to the hearings as a “Kabuki dance,” and others have made similar observations. Of course, the futility of questioning is mostly attributable to Senators who are unwilling to vote against a nominee who refuses to answer questions. If the “smart play” is to refuse to answer questions, then I do not blame any nominee who accedes to that strategy. After all, it is the smart political move, and it is not speculative to assume that every nominee wants to be confirmed. I do not see any valid reason why Senators cannot ask more difficult legal questions…