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AF J NOMINEE REPOR T U.S. Court of Appeals for the Eighth Circuit

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AF J NOMINEE REPOR T U.S. Court of Appeals for the Eighth Circuit david AFJ NOMINEE REPORT AFJ stras U.S. Court of Appeals for the Eighth Circuit WWW.AFJ.ORG CONTENTS Introduction, 1 Biography, 3 Legal Views, 4 Judicial Philosophy and Personal Opinions About Supreme Court Justices, 4 Notable Legal Decisions, 6 Voting Rights, 6 Ballot Measures, 8 Disability Rights, 9 Government Transparency,10 Holding Insurance Companies and Employers Accountable, 10 Sexual Assault, 12 Other Criminal Matters, 13 Conclusion, 13 WWW.AFJ.ORG PAGE 1 to the federal bench. On that score, our INTRODUCTION report finds Stras’s nomination lacking. First, the process for selecting Justice Stras was deeply problematic. In May On May 8, 2017, President Trump nominated 2016, Donald Trump as a presidential Justice David Stras of the Minnesota Supreme candidate announced a list of potential U.S. Court to the Eighth Circuit Court of Appeals. Supreme Court nominees, which included Stras’s nomination has the potential to make a Stras. Trump promised that his nominee far-right court even more ultraconservative. or nominees to the Supreme Court would “automatically” overturn Roe v. Wade.1 For the reasons that will be outlined in this Stras was ultimately not selected to fill the report, Alliance for Justice opposes Stras’s Supreme Court vacancy, despite support nomination. from far-right conservatives.2 Stras is nominated to replace Judge Diana But Stras remains a candidate-in-waiting, Murphy, who took senior status in November and President Trump decided to tap him 2016. For 19 years (until Jane Kelly was for an Eighth Circuit vacancy. And, contrary confirmed in 2013), Judge Murphy was the only to custom, the White House did not woman to ever sit on the Eighth Circuit, and meaningfully consult with either home state Judge Kelly remains the lone woman on the senator, Amy Klobuchar or Al Franken, court. Last year, Senate Republicans refused before putting Stras’s name forward for to consider the nomination of Assistant U.S. the seat. As Franken’s spokesperson said, Attorney Jennifer Puhl for the Eighth Circuit, “Let’s be clear: The Trump administration despite bipartisan support from her home- did not meaningfully consult with Sen. state senators and the unanimous approval Franken prior to Justice Stras’ nomination… of the Judiciary Committee. There are now Rather than discuss how senators three vacancies on the 11-member court, and traditionally approached circuit court President Trump has nominated white men to vacancies or talk about a range of potential fill them all. Of course, lack of diversity is not candidates, the White House made clear its sufficient reason to oppose a nomination (just intention to nominate Justice Stras from the as diversity alone does not compel support for outset.”3 a nominee), but it is vital that our judiciary better reflects the people it serves. The contrast with President Obama’s customary practice could not be starker. As a longtime member of the Minnesota legal For example, when President Obama establishment, Justice Stras will undoubtedly needed to fill a Tenth Circuit vacancy in garner statements of support from other Utah—a state, like Minnesota, that had two members of the Minnesota legal community. senators of the other party sitting on the However, it is vital to understand that such 1 Dan Mangan, Trump: I’ll appoint Supreme Court justices to overturn Roe v. Wade abortion case, Cnbc (Oct. 16, 2016), http://www.cnbc.com/2016/10/19/trump-ill-appoint- expressions of personal friendship and regional supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html. 2 See e.g., Scott Johnson, A Word for David Stras (2), Powerline (Dec. 12, 2016), pride do not pertain to critical factors that make http://www.powerlineblog.com/archives/2016/12/a-word-for-david-stras-2.php. 3 Seung Min Kim, Trump’s judge picks snub Democrats, Politico (Aug. 11, 2017), an individual suitable for a lifetime appointment http://www.politico.com/story/2017/08/11/senate-judges-democrats-trump-241448 WWW.AFJ.ORG PAGE 2 Judiciary Committee—he chose to nominate laws and who was so extreme he thought Carolyn McHugh: a judge who had previously Social Security was unconstitutional. As been appointed to Utah’s Court of Appeals a state Supreme Court justice, Stras has by Utah’s Republican governor. And Judge ruled against government transparency, McHugh was only nominated after first being ruled to limit the rights of children with interviewed and recommended by Republican disabilities, and women, and demonstrated Senators Orrin Hatch and Mike Lee, not by the that he is not a vigilant protector of voting White House. As McHugh noted: rights. In January 2013, I submitted a cover letter There are also serious questions as and resume to Senator Orrin Hatch and to to his potential partisan biases. Stras Congressman Jim Matheson for a possible wrote an amicus brief on behalf of the position on the Tenth Circuit. On January Republican governor of Minnesota, who 16, 2013, I interviewed with Senator Hatch later appointed him to the state supreme and Senator Mike Lee, and on January court, arguing for tremendously expansive 30, 2013, I interviewed with Congressman power for the chief executive to unilaterally Jim Matheson. On February 4, 2013, I was spend less money than the Democratic- notified by Senator Hatch that he and controlled legislature appropriated. As a Senator Lee would be recommending Supreme Court Justice, he then sided with me to the White House for consideration. the Republican-controlled legislature in The following week, I was contacted by a dispute with the Democratic secretary an official from the White House Counsel’s of state, putting aside his purported Office and interviewed…4 commitment to strict textualism to ignore a statute that explicitly gave the secretary Clearly, the process McHugh describes is a far of state the authority to set titles for ballot cry from what occurred in Stras’s case, when measures. And, he again sided with the the White House imposed a conservative Republican legislature in its effort to put ideologue on two members of the Senate on the ballot a measure to make it more Judiciary Committee without engaging in difficult for minorities and the elderly to meaningful consultation. vote, in language that was “phrased to actively deceive and mislead.” Not only is the process leading to Stras’s nomination concerning, but Stras’s record is Given the concerns about Stras’s record, also deeply troubling. Throughout his career, it is absolutely vital that he publicly Stras has repeatedly showcased his far-right be forthcoming about his views and leanings. He has praised Justices Clarence philosophy. To date, President Trump’s Thomas (for whom he clerked), Samuel Alito nominees have gone out of their way to be and Antonin Scalia, and even wrote a law less than candid during the confirmation review article lauding Supreme Court Justice process: Neil Gorsuch simply refused Pierce Butler, who was known as one of the to answer basic questions. As Linda “Four Horsemen” for striking down New Deal Greenhouse noted, “[i]f Judge Gorsuch 4 See Sen. Comm. on the Judiciary, 113th Cong., Carolyn McHugh: Questionnaire for Judicial Nominees (2014), https://www.judiciary.senate.gov/imo/media/doc/Carolyn-McHugh-Sen- wasn’t the least forthcoming Supreme ate-Questionnaire-Final.pdf (emphasis added). WWW.AFJ.ORG PAGE 3 Court nominee ever to appear at a confirmation Senators who are unwilling to vote hearing, it’s hard to imagine one who could be against a nominee who refuses to less forthcoming while still breathing.”5 John K. answer questions. If the “smart play” Bush, a nominee to the Sixth Circuit, gave such is to refuse to answer questions, then incomplete answers that his own hometown I do not blame any nominee who newspaper said he “duck[ed] questions” accedes to that strategy. After all, it He went so far as to even avoid answering is the smart political move, and it is questions on how he would approach not speculative to assume that every interpretation of the Constitution, saying “my nominee wants to be confirmed. I personal views on constitutional interpretation do not see any valid reason why [are] irrelevant.”6 Senators cannot ask more difficult legal questions...7 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 biography before the Court, was improper. Now I am not so sure.” Stras was born and raised in Kansas. He He continues: graduated from the University of Kansas in 1995, and later went on to earn an MBA When I first started researching the (1999) and his law degree (1999) from the federal courts about six years ago, University of Kansas. Following law school, my view was very much in line with Stras clerked for Judge Melvin Brunetti the “Ginsburg standard” due to the (9th Cir.) and Judge Michael Luttig (4th ethical risks raised by a nominee who Cir.). From 2001 to 2002, he practiced for pre-commits to a particular position a year at Sidley Austin Brown & Wood in before being provided with briefing Washington and then clerked for Justice and a concrete case or controversy. Thomas on the U.S. Supreme Court. But after reading every confirmation hearing since Justice O’Connor’s and From 2004 to 2010, Stras was on the spending approximately eighteen months faculty of the University of Minnesota Law researching judicial appointments, my School. From 2009 to 2010, Stras was also view has changed. At least one Senator of counsel in the Minneapolis office of has referred to the hearings as a “Kabuki Faegre & Benson LLP, where he practiced dance,” and others have made similar in the appellate advocacy group.
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