A word for David Stras (2)

In a speech to the Heritage Foundation last week, Vice President-elect Mike Pence recalled how, during the campaign, both he and President-elect Trump regularly reminded conservative voters that “the next president would likely have the opportunity to influence the Supreme Court and its influence for the next forty years, and the American people responded to that message.” Pence assured the audience that the Trump administration will soon make good on its promise to influence the Court by replacing Justice Antonin Scalia with a justice of similar qualifications and judicial philosophy.

One of the potential nominees is Minnesota Supreme Court Justice David Stras. Candidate Trump identified 11 candidates among whom he would make his selection if elected. I put in a good word for Justice David Stras in an earlier post and also posted the video of a speech Justice Stras gave to the Twin Cities Cardozo Society about his grandfather Walter Stras in “Justice Stras remembers his grandfather.” Those posts showed Stras’s compelling family history and Stras’s commitment to a judicial philosophy similar to Justice Scalia’s.

In this post I offer a few reasons why Justice Stras’s personal attributes make him extremely well qualified to serve as the next justice. Although it may be slightly confusing, I refer to him as Justice Stras because of his current position as associate justice on the Minnesota Supreme Court.

1) Justice Stras was a popular and respected teacher at the University of Minnesota Law School. Justice Stras follows in the footsteps of Justice Scalia in having worked full-time as a faculty member at a major law school before appointment to the bench — Justice Stras at the University of Minnesota Law School, Justice Scalia at the University of Chicago Law School. Noting this fact, I would like to quote from the words of then Dean David Wippman in his introduction to the Minnesota Law Review’s special issue honoring Justice Stras upon his departure from the law school for the Minnesota Supreme Court:

David Stras joined the University of Minnesota Law School faculty in 2004 and quickly established himself as a rising star, both as a teacher and a scholar. Only two years after he arrived, he was named the Stanley V. Kinyon Tenure Track Teacher of the Year. The award came as no surprise. Students quickly came to hold Professor Stras in the highest regard. They appreciated his insights, the time he devoted to preparation, and his passion for his subject. Equally important, they knew how much he cared about them. His enthusiasm in class was apparent and infectious.

But David’s concern for students was not confined to the classroom. David made it a personal mission to expand our students’ clerkship opportunities. He worked tirelessly with judges at all levels, including many of his new colleagues on the Minnesota Supreme Court, to place as many students as possible. David also served as the Law Review advisor, helping the editors identify topics, plan symposia, and navigate the byzantine world of academic publishing. It therefore came as no surprise that the Law Review, on its own initiative, decided to organize and publish this Tribute to Justice Stras.

David also quickly built a reputation as an accomplished and insightful observer of all things Supreme Court. Just a few years into his academic career, David published a series of important articles examining the U.S. Supreme Court’s jurisprudence, its docket, and its history, and rapidly established himself as a leading voice in contemporary constitutional debates.

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David’s talents as a teacher and scholar were matched only by his warmth and collegiality. David loves the exchange of ideas. He does not shrink from intellectual debate; certainly, he has never hesitated to tell me when he thinks I’m wrong about something. No doubt he will not hesitate to dissent if he disagrees with a court majority. But when David does disagree with a colleague, he always has good reasons, he articulates them well, and, perhaps most important, he engages in good faith dialogue. He is open to persuasion, and even when he disagrees, he respects the positions of those with whom he disagrees. David’s openness and intellectual integrity have earned him the respect and friendship of his faculty colleagues and students alike, whatever their own political leanings.

The whole thing and more are here.

As I noted earlier, Justice Thomas traveled to Minnesota to administer the oath when Justice Stras took office on the Minnesota Supreme Court. Justice Thomas put it this way: Justice Stras was prepared for the job “by training, by experience, by disposition.” The same applies to his possible Supreme Court appointment.

2) Justice Stras has a consistent record of using a textualist/originalist approach, and will not change that approach over time. In “A Word for David Stras,” I highlighted several of Justice Stras’s Minnesota Supreme Court opinions demonstrating his use of textualism and originalism. Justice Stras’s originalist methodology, however, did not begin at the Minnesota Supreme Court, and — in fact — his academic and judicial writings show that textualism and originalism have always been fundamental to Justice Stras’s view of how the law should be interpreted and applied.

At the University of Minnesota Law School Justice Stras quickly established himself as a leading scholar on federal courts, writing (and compiling) the book (a casebook) on the subject. As an academic, Justice Stras consistently employed an originalist methodology in analyzing constitutional questions. For example, Justice Stras co-wrote Retaining Life Tenure: The Case for a “Golden Parachute” in which he focused on the “text, structure, and original meaning” of Article III, Section 1. The constitutional provision states that judges are to hold their offices “during good behaviour.” Justice Stras traced the use of the phrase “during good behaviour” back to English common law on property conveyances and through the Federalist Papers to conclude that the original understanding of the term was that well-behaved judges would receive appointments for life. This article demonstrates that, as a professor in 2005, Stras applied originalist methodology as his principal approach to constitutional interpretation.

Justice Stras’s opinions on the Minnesota Supreme Court employ the same originalism. As noted elsewhere, Justice Stras’s majority opinion in United Prairie Bank v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49 (Minn. 2012) is perhaps the best example. Justice Stras applied an originalist understanding to the Minnesota Constitution’s right to a jury trial to conclude that the right would have been understood to apply to similar claims at the time the state constitution was adopted. He explained: “[O]ur case law requires us to analyze current causes of action and pleading practices in the context of the theories of relief available in, and the jurisprudence of, the 1850s. The focus of the inquiry therefore depends ‘on whether Minnesota’s territorial courts guaranteed the right to a jury trial in the type of action’ pled in a complaint.” Id. at 53-54. Applying this analysis, Justice Stras concluded that the right to a jury trial included the claim in the case.

Both Justice Stras’s academic work and judicial opinions convey a consistent commitment to textualism and originalism. Justice Stras’s views on the matter clearly are established and essential to his understanding of how legal texts should be interpreted. There is no reason to believe Stras’s approach will shift if he is appointed to the Supreme Court.

3) At 42-years old, Stras could influence the application of law in the United States for decades. The average age of sitting Supreme Court justices is now historically old; the average age of current justices now approaches 70. Justice Stras is the youngest judge on Trump’s first list of potential nominees.

For reference, Justice Thomas had just turned 43 when he was appointed in 1991, and the median age for justices appointed to the court since 1789 is 54.5. Apart from simply making the court younger, a Stras appointment would send a signal about the type of judges Trump’s administration will select in the future. As Hugh Hewitt suggested on Twitter here and here, President-elect Trump could appoint Stras and then announce that future appointees also will be young, highly qualified and conservative. This would demonstrate the Trump administration’s commitment to influencing the federal courts for the next 40 years.

4) Justice Stras would bring a unique perspective to business cases. Given President-elect Trump’s business background, it’s not surprising that Trump’s list of potential court nominees includes two judges who hold MBA degrees in addition to law degrees — Justice Stras holds a JD/MBA from the University of Kansas and Judge Raymond Gruender holds a JD/MBA from Washington University. Justice Stras’s business education is evident in his work on the Minnesota Supreme Court, where he has written several opinions in complex business and regulatory cases. See, e.g., Minnesota Energy Res. Corp. v. Comm’r of Revenue, Case No. A15-0422, 2016 WL 6635550 (Minn. Nov. 9, 2016). Regardless of how one views the ongoing debate regarding the supposedly pro-business bent of the Roberts court, Justice Stras’s education in, and experience with, business issues add an important component to his qualifications for the Supreme Court.

5) Justice Stras may be relatively easy to confirm. Minnesota’s two Democratic senators — Amy Klobuchar and Al Franken — both sit on the Senate Judiciary Committee. Justice Stras campaigned across the state when he ran for election to the Minnesota Supreme Court in 2012 (following his appointment by Gov. Pawlenty to fill a vacancy) and won election easily. Circumstances suggest the political difficulty Senators Klobuchar and Franken would have attacking Justice Stras as too extreme for the high court. This may not be enough for Democrats to vote to confirm Justice Stras, but it may be enough to avoid a drawn-out partisan battle over the president’s first Supreme Court nominee.

NOTE: I would like to acknowledge the research assistance of Minneapolis attorney David Asp in the preparation of this post.