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Justice Stras should be confirmed for U.S. Court of Appeals

Six Minnesota law professors with diverse political views joined together to write this commentary. Carol Chomsky, Kristin Hickman and William McGeveran are professors at the University of Minnesota Law School. Michael Stokes Paulsen is a professor at the University of St. Thomas School of Law. Peter Knapp and Ted Sampsell-Jones are professors at the Mitchell Hamline School of Law.

Justice David Stras

The nomination of Minnesota Supreme Court Justice David Stras to the U.S. Court of Appeals for the Eighth Circuit has wide support from Minnesotans of all political and legal backgrounds. Attorneys and judges who have worked alongside Justice Stras or appeared before him on the Minnesota court report that Stras goes where the law leads him. Earlier this month three former justices of the Minnesota Supreme Court – former colleagues of Stras – wrote a commentary attesting to his fair-minded approach and urging the Senate to confirm his nomination.

This has not stopped partisan attacks claiming that Stras’ views are “extreme” and “clearly in the mold of an ultra-right-wing conservative.” The Star Tribune published a response to the piece by Stras’ former colleagues. In it, Beth Gendler claimed that Stras’ “paper trail” shows “a judge driven by conservative ideology and falling short of judicial independence and evenhandedness.”

Approaches work without bias or favoritism

We are Minnesota law professors with diverse political views ranging from very conservative to very progressive. Some of us have appeared before Justice Stras as advocates, and all of us are familiar with his academic and judicial track records. We can say that these attacks against him are simply wrong. He is no extremist, and he has approached his academic and judicial work without bias or favoritism.

With respect to Stras’ academic work, Gendler’s piece distorted a book review written by Stras in 2008 called The New Politics of Judicial Appointments to suggest that Stras “lamented” the Supreme Court’s school integration decision in Brown v. Board of Education. That review discussed the work of Benjamin Wittes, a leading journalist and scholar at the Brookings Institute. As Wittes correctly observed, school integration in 1954 was a controversial subject, and the court’s decision in Brown became an issue during confirmation hearings for subsequent Supreme Court justices. Stras summarized Wittes’ views in his review. To suggest this discussion somehow means that Stras “lamented” the school-integration decision is absurd.

The misrepresentations of Stras’ judicial record are just as bad. For example, Gendler wrote that Justice Stras dissented from a ruling that allows expert-opinion evidence in rape cases to rebut a defendant’s claim that sex was consensual. The truth is that he dissented on purely procedural grounds, since the state had employed an unusual procedural device to take the appeal. He argued that the court lacked jurisdiction. Joining him in that dissent was Justice Alan Page, who was at the time the court’s most progressive member.

Fair and independent

A fair examination of Stras’ judicial record paints a much different picture — that of jurist who is conservative, to be sure, but also fair and independent. Just a few weeks ago, a majority of the Minnesota Supreme Court engaged in some rather “flexible” methods of statutory interpretation in order to enhance the sentence of a DWI offender. Stras dissented, arguing that the plain meaning of the statute did not allow the enhancement, and only the legislature could enact such a law. His dissent was joined by one of the Court’s more progressive members. Examples like this abound.

Our point is not that we agree with every ruling that Justice Stras has made in the past or will make in the future — we don’t, and we won’t. Rather, our point is that to maintain the integrity of an independent judiciary, the Senate should affirm nominees who are well qualified and within the mainstream of American legal thought. Stras undoubtedly meets these criteria.

Minnesota has a wonderful tradition of nonpartisanship in judicial appointments. Lawyers of all political stripes come together to support good judges, no matter which party appoints them. We do that because in the long run, narrow partisan interests matter less than fundamental principles. In our constitutional democracy, an independent and nonpartisan judiciary is designed to protect the rule of law. To do that, the judiciary needs intelligent and impartial judges with diverse views.

Although we disagree on many legal and political matters, we all support Stras’ nomination. He is intelligent and impartial. He is committed to deciding cases objectively based on the constitutional and statutory provisions before him, regardless of which party that favors. He will make an excellent judge on the Eighth Circuit. He should be confirmed.

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Comments (10)

Law professors

While I always value the opinion of law professors, I think it is important also to apply the usual standards of academic discipline to their work. In particular, when academics refer to sources, they should cite them, and footnote. Lamentably, the good professors, despite their bipartisan views, chose not to do that here.

In particular, the professors did not provide a footnote, let alone a link to the article by Judge Stras they discussed. Based on this column, we simply have no way of evaluating the soundness of their analysis. They told us that Judge Stras' "summarized" the argument, but they told us nothing about the way he summarized. Their disagreement with the Gendler argument is nothing more than an usupported assertion of a type that probably would nott be viewed favorably in a first year class at the UofM law school.

More serious is their description of Gendler's account of Judge Stras's opinion in the expert opinion case as a mischaracterization. What I gather from the professors is they would have explained the case differently but there is no reason to think Gendler's account is inaccurate. The judge's own characterization of the judge's opinion as based on procedure is hardly comforting knowing as we and the professors do that many decisions with huge substantive effects are made on procedural grounds.

I think it's great to hear from academics. They should have an important role in this discussion. But it should not be the case that their concerns should be the prevailing concerns. The judicial appointments of Donald Trump are a fulfillment of campaign promises made in the most highly partisan process imaginable. Mr. Trump made very specific promises to deliver very specific decisions during his campaign. There is nothing unfair or wrong to call any nominee Mr. Trump puts before the senate and the American people to account for the promises that were made on their behalf.

Hyperlinked

Mr. Foster,

While easy to miss, the authors (or MinnPost's editor) did go to the trouble of hyperlinking both of the sources you criticize them for not footnoting. While footnotes would be more noticeable, hyperlinking is the norm for citing sources in journalistic pieces appearing on the internet.

While your point about mischaracterization is well taken, it should also be noted that Gendler's rejoinder itself was highly partisan, in which she, in several instances, marshaled the term "conservative" with the implication that that term is synonymous with "despicable." It bears noting here that there is a fine distinction between legal conservatism and social conservatism, though Gendler would seem to treat them as utterly fungible. For example, there is a distinct difference between saying that elements of the ACA do not pass the "Lemon Test" (see Lemon v. Kurtzman) and therefore should be struck down, and saying that this country is Christian and so contraception is wrong because interpretations of the Bible hold as much.

What is more, their defense of Justice Stras from Gendler's contumely is rather restrained, as she makes glaringly weak assertions in her piece. For example, she ventures far afield when she builds a guilt-by-association line of attack, noting that Stras is a member of the Federalist Society, a group that Trump turned to for support. But Trump's solicitation of Federalist approval is hardly surprising, as every Republican curries favor with the Federalist Society, a group that champions a view of federal powers being enumerated and therefore limited, while maintaining the States have near plenary authority to do whatever they please, something that should warm the cockles of all of those on the left who have, since Trump's election, come to embrace the power of local over federal government.

Stras might represent a repugnant, retrograde, unevolved worldview to some, but clearly, if he applies the law impartially, then the rest is all by the way. The thrust of the article is that he does. If these scholars are correct, then Stras is exactly the kind of federal judge we want, for once laws start getting overly stretched so as to shoehorn one's own belief system into them, we will rue the day when less scrupulous people who are morally bankrupt use those precedents to shoehorn in their own dangerous and despicable beliefs. And whether or not a man such as Donald Trump, whom I personally find utterly and totally contemptible, has been highly partisan and underhanded in his pathetic campaign is immaterial to the individual appointees and their respective virtues.

Politics

If only it was really about legal conservatism and stretching the language of the law too far. It really isn't - it's all political. Conservatives like to claim the strict construction/literalist mantra because it often serves their needs. They are quick to abandon it, however, when it doesn't. We heard a lot of the same talk about Neil Gorsuch, but his ridiculous dissent in the Arkansas same-sex adoption birth certificate case proved what a joke that was in his case. Scalia was no better, writing ridiculously "activist" decisions when it suited his agenda.

Trump won the election and he gets to appoint judges that will carry out his political agenda. Elections have consequences and this is a big consequence. Can we stop pretending that something else is going on here? Stop pretending that Stras was picked because of anything but politics?

disappointing

Here's where this commentary fails, and I find myself disappointed in all of these law professors:
"Rather, our point is that to maintain the integrity of an independent judiciary, the Senate should affirm nominees who are well qualified and within the mainstream of American legal thought."

When David Stras was appointed to the Minnesota State Supreme Court, he was manifestly unqualified for the appointment, having little experience and being the least qualified appointment to the court in the modern era. Apparently, Stras should get a pass because he wasn't a complete botch during his time on the bench and should get an additional reward from his original, highly partisan appointment to an even bigger stage on the federal bench with a critical lifetime appointment.

Doubling down on the original error is still an error, no matter the affection they have for Justice Stras.

What nonsense

I can tell you exactly where the law is going to lead him when he gets appointed. He'll be ruling against LGBT and women's rights and for corporations at the expense of working people. Yes, he's a smart guy and all, but he got appointed to carry out the right-wing agenda he supports. No one should pretend otherwise.

This tiny and

This tiny and unrepresentative group of law professors would have us believe that their sniffing at the rest of us for supposedly confusing judicial conservatism with social conservatism is enough for us to accept their full support for their conservative colleague. Anyone who follows court issues does not confuse the two, pace all these erstwhile elitists.

They are simply upset that a progressive has made a strong published argument against this nominee's appointment. And they try to force agreement with the absurd argument that a conservative justice is not really conservative if he holds to the strict letter of the law. There is a glaring difference between a conservative and a liberal or progressive on the bench, and they can turn blue before any of us will accept that there is not.

Also: One tires of conservatives prefacing their remarks with "we're all progressives here!" or "we represent the gamut of political views here!" when they aren't and don't. I've been seeing a lot of that in the press lately, and my resistance to whatever the authors have to say begins with that false claim of identity.

Escherly

There's something about this column today and the links and and comments which reminds me of the artist M.C. Escher. I reviewed Justice Stras's "scholarly" article through the link above. Stras's article is a book review of two books by two journalists about the politicization of the judicial appointment process. So here we have an example of the politicization of the judicial appointment process which the three law professors in today's "Community Voices" column are trying to argue should not be politicized. Stras's article, which to me comes across as fair and reasonable, would itself speak this reasons for this politicization, as would the two books which he reviews in his "scholarly" article. Stras himself and the authors whose books he reviewed would all agree at any rate I think that the appointment process is political and partisan. What's really interesting and revealing in itself that Stras has shown himself to be a student of the politicization of the judicial appointment process.

One of the points made by Ms. Gendler in her opinion piece also linked above related to Justice Stras's dissent in a case which Stras's would have denied insurance coverage based on his reading of the policy. Historically, the Minnesota Supreme Court, like other courts in the US already leans quite "right" in that it is very vigilant in protecting property rights. In practice,this means that as a general rule in any match between the State or Big Business and the individual, the individual is going to lose. The rules governing the decisions of cases are stacked in such a way that moneyed and powerful interests will prevail most of the time.

The Federalist Society and other Right-leaning groups think that it's not good enough that Big Business, the State or moneyed classes prevail only "most of the time" and "as a general rule". Stras's dissent in that case and I'm sure his other opinions were written was to assure anyone who was watching from these groups that he's on their side and can be counted upon to advance their agenda if politics does become involved in judicial selection.

But they do run a gamut...

Having had one of the three U of M profs in class, serving with one on a committee, and knowing the reputation of another, your last point is painfully wrong. While one of the profs is probably best described as a moderate conservative, both the others are clearly left-of-center.

You also generally mischaracterize the argument made, which largely focuses on their experience with the nominee as colleague and justice. They worry about the characterization made in a prior piece.

Nothing in the piece suggests the authors think there isn't a difference between a liberal and conservative on the bench, particularly on key issues. Clearly, underlying assumptions/ideas about the law matter. Their argument is that reasonable, qualified individuals may disagree. One prof, I know, emphasizes that most issues that come before a court are unlikely to be politicized. Unfortunately, most lay court observers have an observation bias.

What you dismiss as elitism seems far more likely a concern about unwarranted character attacks.

I fail to see how criticizing

I fail to see how criticizing a judge's judicial philosophy constitutes an attack on his character.

Stras might represent a

Stras might represent a repugnant, retrograde, unevolved worldview to some, but clearly, if he applies the law impartially, then the rest is all by the way.

The argument that is made now almost constantly in judicial nomination hearings. "We know what the law is", they say, "It exist in a pure form that I can discern and base my judgments on." The tell us, "Although I am a product of the most highly politicized process imaginable, and I was selected by a years long vetting process designed to ensure my political reliability, all of that is irrelevant, they got all of that wrong, and I am really the soul the very essence of impartiality, I concept I won't define for you because I am keeping it a secret until I actually on the bench."

Well, we know now all of these claims are nothing more than legal fictions, which are famously fictions so absurd that only lawyers and perhaps the occasional law professor are capable of believing. What we have seen, and we have seen it over and over again, is that justices who argued so eloquently for their impartiality at their confirmation, once on bench have delivered nothing but political rulings based not on any law anyone can find in a book anywhere, but on what their political sponsors wanted them to do, as supplemented by whatever it is they heard on talk radio on the drive in to work in the morning.

In the purest way possible, these nominees who are telling us that they impartially uphold the law are telling us things they know, and we know, are simply not the truth.