By Mike Mosedale
BridgeTower Media Newswires
Way back in May, when Donald J. Trump rolled out the names of 11 jurists he would consider as possible replacements for the late Justice Antonin Scalia, the move was widely seen as an attempt to bolster Trump’s conservative bona fides among establishment Republicans who were nervous about his fealty to their principles.
To that end, the potential nominees were culled from lists compiled by the Heritage Foundation, the Washington D.C.-based political think tank, and the Federalist Society. The latter group gave its official stamp of approval to Justice David Stras, the 42-year old former law professor and current associate justice on the Minnesota Supreme Court.
For those who bought into the conventional wisdom that Trump would never become president, the release of the list — and the inclusion of Stras — looked like little more than a curious footnote to a surpassingly strange election season.
Even as late as September, it seemed like a surfeit of lawyerly caution when Stras recused himself from hearing oral arguments in a lawsuit brought by Minnesota Democrats seeking to have Trump’s name stricken from the ballot.
Now that Trump is in a position to nominate Scalia’s replacement, it’s probably worth asking the question: What are Stras’ chances?
They are probably not as good as they were in May, if only because Stras now faces more competition. In September, Trump expanded his pool of potential nominees, adding 10 more names to his list. “This list
is definitive,” Trump announced at the time, “and I will choose only from it in picking future justices of the Supreme Court.”
At FantasySCOTUS.net – an online “Supreme Court Fantasy League” where attorneys, law students, and court followers make predictions about the Supreme Court, with cash prizes going to the most accurate soothsayers – Stras is currently ranked the fifth most likely nominee.
That places him slightly ahead of better known names, including Texas Senator Ted Cruz, (who is the subject of SCOTUS speculation despite not being included on Trump’s list), and Don Willet, the Twitter-savvy justice from the Texas Supreme Court.
Stras still lags six percentage points behind the leader, Tenth Circuit Judge Neil Gorsuch, who is ranked as most likely choice by 14 percent of FantasySCOTUS participants.
FantasySCOTUS’ fantasies aren’t for everyone. Recently, more conventionally-minded readers of SCOTUS tea leaves cast their eyes on D.C., where the Federalist Society hosted a three-day confab devoted to “the Jurisprudence and Legacy of Justice Scalia.”
Nine of Trump’s potential Supreme Court nominees were in attendance, including Stras, who moderated a forum on Scalia and criminal law. The gathering of Supreme Court hopefuls prompted USA Today to declare, “Supreme Court wannabes audition in Scalia’s shadow.”
If Stras wins the Trump sweepstakes, his selection will be historic in at least one regard.
As the UCLA law professor and Washington Post blogger Eugene Volokh pointed out in May, Stras, who clerked for Clarence Thomas in the October 2002 term, stands to become the first Supreme Court justice to ever serve alongside a justice for whom he clerked.
(Interestingly, Stras isn’t the only one on Trump’s list who could make history in that manner. According to Volokh, two other potential nominees, Utah Supreme Court Justice Thomas Lee and Colorado Supreme Court Justice Allison Eid, also both clerked for Thomas, while a third, 6th circuit Judge Raymond Kethledge, clerked for Anthony Kennedy.)
Stras’ connection to the Supreme Court runs deeper than his stint as a clerk for Clarence Thomas. As a law professor at the University of Minnesota from 2004 to 2010, he focused most of his academic writings and research on the institution.
“I think he’d be unique in that regard. He’s one of the most prolific scholars on the work of the court,” noted Robert A. Stein, the former dean of the University of Minnesota Law School and past executive director of the American Bar Association.
Stein, who got to know Stras when he rejoined the law school faculty in 2006, said he couldn’t hazard a guess about Stras’ prospects for nomination, nor had he discussed the matter with his former colleague.
“I hope he’s high on the list because I have a have a very high opinion of him,” Stein added.
In addition to Stras’ academic writings about the high court, he has blogged about the court extensively.
Prior to his appointment to the Minnesota bench, Stras was a regularly contributor to SCOTUSblog, weighing in on everything from confirmation battle over Sonia Sotomayor (Stras accurately predicted she would sail through, the “wise Latina” kerfuffle notwithstanding) to various proposals to end lifetime tenure for Supreme Court justices.
Stras’ possible future colleagues on the bench might be relieved to learn he isn’t a proponent of the latter.
“I have always thought that term limits for Justices sound good until you really give the issue some thought,” Stras wrote in a 2007 blog post in which he raised the warning flags over “the amount of legal turmoil that would ensue if the Senate were confirming new justices every two years.”
Still, Stras expressed support for finding ways to nudge aging or infirm justices from serving until death. In a law review article entitled “Retaining Life Tenure: The Case for a Golden Parachute,” he argued that Congress should incentive judicial retirement by making it more lucrative.
In another article, Stras proposed that Congress enact what he dubbed the “Circuit Riding Act of 2007.” That plan would require that U.S. Supreme Court spend at least five days a year on the road taking oral arguments alongside a circuit court panel – a return to historical practices that, Stras suggested, could improve the institution by getting the court out of the Washington D.C. bubble.
When Stras left the University of Minnesota Law School to join the Minnesota Supreme Court, Ryan Scott -- a former student, collaborator and now a law professor at the University of Indiana -- couldn’t resist a poke at “the rich irony of Professor Stras’ latest career move.”
“After years of research on judicial decision making, placing judges under the microscope, he has somehow managed to hop under the microscope himself,” Scott wrote in his 2011 tribute.
Pointing to Stras’ “impressive body of scholarly writing that scrutinizes and challenges judges’ decisions,” Scott cheekily suggested that some “excesses” could be blamed on “reckless and irresponsible co-authors.”
“Still, after spending the better part of his career devising innovative ways of provoking judges, how did this guy become a judge himself?” Scott asked.
Is that a question about to become a little more resonant?
In response to an inquiry from Minnesota Lawyer about his thoughts on a Stras’ nomination, Scott declined to speculate.
“Obviously I’m on record expressing my admiration for David, who has been a colleague and friend for years. Beyond that, I’d rather not comment at this time,” Scott said by way of email.
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