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Politics snarls Stras' federal court bid, but he knows the drill

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David Stras responds to a student's question.
Almost five months after President Trump tapped Minnesota Supreme Court Justice David Stras, right, for a federal appeals court post, his nomination is hung up in procedural limbo.
Evan Frost | MPR News file

Minnesota Supreme Court Justice David Stras' federal court nomination is tangled in Washington politics. But he probably saw it coming.

As a University of Minnesota law professor, Stras researched what he saw as an increasingly contentious process to approve federal judicial nominees. Republican voters in particular, he said, were energized by confirmation battles.

  "For whatever reason judges seem to resonate better, at least on a money-raising standpoint, with the Republican base," Stras told MPR News in 2009 during a program analyzing Sonya Sotomayor's U.S. Supreme Court confirmation hearings, "maybe because of abortion or guns or affirmative action, or whatever."  

A good fight, he noted, revs up the party's senators and its core voters. "They want to appeal to that base so they have issues to run on in the midterm elections."

Eight years later, Stras is at the center of a similar fight that could have broader implications for the way prospective federal judges are picked. His nomination by President Trump to a federal appeals court seat has languished for almost five months. Conservatives and other Stras allies are fed up.

Currently, 12 appeals court nominations and dozens of lower court appointments are pending. The Stras nomination, announced in May, stalled in the Senate Judiciary Committee due to resistance from Minnesota DFL Sen. Al Franken.

There's "some irony in that he's caught up in this federal judicial appointments process that he's studied for many years and we wrote about for many years," said Ryan Scott, who was a law school student of Stras' and collaborated on research with him.  

Now a law professor himself at Indiana University, Scott suspects Stras won't back away, at least not yet. Stras has declined multiple interview requests.  

Republicans in Minnesota's congressional delegation recommended Stras to the Trump White House. But Franken and fellow Democratic Sen. Amy Klobuchar say they weren't contacted until too late.

  "It was not the meaningful consultation we have always had. Sen. Klobuchar and I were not consulted about the choice," Franken said. "It was just presented to us."

  Franken has stymied the Stras nomination by withholding his approval. Klobuchar said Stras deserves a confirmation hearing but respects Franken's ability to lodge an objection.

Since Senate custom is to wait for until both home-state senators back a nominee, a hearing hasn't been scheduled. It's unclear how majority Republicans will proceed.  

Minnesota Supreme Court Justice David Stras
Stras questions attorneys as the Minnesota Supreme Court hears arguments on the Voter ID ballot question in 2012.
Glen Stubbe | Pool | Star Tribune via AP 2012

Republican Senate Majority Leader Mitch McConnell of Kentucky hinted in a recent New York Times interview that it's time to abandon that so-called "blue slip" process and forge ahead with the nominations of Stras and others who have been held up. He said he would consult with Democratic Senate Minority Leader Chuck Schumer of New York first. 

  If the stand leads to the end of the Senate's "blue slip" custom, the consequences could be big, said Russell Wheeler, president of the Governance Institute and a legal scholar at the Brookings Institution.

  "You are likely to get a situation of more ideological candidates and candidates who can't win at least the grudging support of people on the other side of the aisle, producing a more ideological judiciary," Wheeler said.

  But lifetime appointments like the one Stras, 43, is up for shouldn't be taken lightly, said Franken, adding he has "lots of concerns" about Stras.

"He clerked under Clarence Thomas, who is the most conservative member of the U.S. Supreme Court, who has made problematic decisions on affirmative action and LGBT issues," Franken said. "Some of Justice Stras' writing on those issues concern me very much."  

Franken has seized on words and phrases used by Stras in a few commentaries to raise questions about his views on gay rights and advancing diversity in public schools and colleges. The senator has also argued that Stras first came to Trump's attention through lists compiled by the Heritage Foundation and Federalist Society, which Franken labeled "right wing."

  Former Vice President Walter Mondale has also raised concerns about Stras' commitment to civil rights protections.

  But allies of Stras say he isn't being treated fairly and his record isn't being accurately portrayed.  

University of Minnesota law professor Bill McGeveran is a former Stras colleague who describes himself as a Franken supporter and progressive Democrat, including a past stint working for Schumer.  

  "But in this case I know that there is not going to be a judge appointed by this president who is going to share the same kind of progressive views I hold," McGeveran said. "So, to me the priority is finding someone who has the open-mindedness to listen to all points of view and the intelligence and temperament and collegiality."

  McGeveran regards Stras as principled and said he has the smarts and character to make a good federal judge.

David Stras listens to student's questions.
Stras, 2nd from right, listens to questions from Wayzata High School students after the court held it's 45th in-school oral argument in May.
Evan Frost | MPR News

  "He is not a predictable party-line kind of a vote on the bench. He hasn't been at the Minnesota Supreme Court, and I expect he wouldn't be at the federal appeals court either," McGeveran said.  

On Minnesota's top court, Stras has sometimes surprised observers. Just this month, he wrote the majority opinion in a free speech case in which he sided with the court's Democratic appointees and was at odds with the two other Republican appointees.   

  He also teamed up on occasion with former Justice Alan Page, who was on the court's liberal wing until retiring, on cases involving criminal justice. 

Page has endorsed his nomination. 

  Scott, the former student and later research partner, said Stras is far from ideologically rigid.

  "We all knew he clerked for Justice Thomas and so a lot of people expected that he would be a sort of hard-line conservative in the classroom," Scott said. "He didn't come across that way then and he didn't come across in the years that I worked with him either."

  Scott said he didn't support Trump but was heartened to see him pick Stras.

 

'Am I wrong?'

  Born and educated in Kansas, Stras had already amassed an impressive resume of clerkships and law firm jobs in several states before landing at the University of Minnesota law school in 2004. He was 30 at the time.

  Five years later, he shot onto the public scene when then-Gov. Tim Pawlenty, a Republican, put him on the Supreme Court.  

Stras said he accepted the post with humility.

"I remain mindful that the role of a judge is a limited one and judges can't solve every problem," he said then. "But at the same time judges play a crucial role in safeguarding liberty and protecting the rights of all citizens."

  Watch any Supreme Court oral argument and Stras stands out. He enters the court chambers and positions a tablet device in front of him. It doesn't take long for him to start lobbing questions at attorneys, often two or three at a time.

  Leaning forward toward his microphone, he's fond of fashioning his inquiries into hypotheticals to test the legal theories on his mind. He routinely ends his probes with a variation of "Am I wrong about that?"

  In a recent case about the propriety of police searches for drug evidence, he dropped in a reference to the "Law and Order" television show. In another on law enforcement power to compel a criminal suspect to unlock his fingerprint-protected iPhone, he was incredulous about a point the man's attorney was making.

"Counsel, that's kind of a silly way to run a railroad," he interrupted before reframing the argument at hand.  

All Stras can do now is wait for his turn on the hot seat as judicial nominees put forward well after him stand for their confirmation hearings.

In 2008, Stras co-wrote a scholarly article that noted the average time for the Senate to consider appeals court nominations had grown on average from a month or two to more than a year and lamented that the nomination process for those positions had become "high-stakes, explosively partisan, and often nasty."

  The result, he wrote was "a process as 'ugly and divisive' as it has ever been, with many highly qualified candidates unwilling to endure the long struggle to confirmation."

Stras can remain on the state Supreme Court until confirmed, if that ever happens, or stay there if it doesn't.