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.
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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