On MN Supreme Court, David Stras found unlikely allies

Minnesota Supreme Court Justice David Stras, a Tim Pawlenty appointee, is heading for the federal bench now that President Donald Trump has nominated him for for the 8th Circuit Court of Appeals.

White House Counsel Don McGahn said the appointment of Stras and another conserviative judge are consistent with a commitment from Trump “to appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.”

Stras, who once clerked for Clarence Thomas, is a conservative. And because of that, Twitter today is filled with citations of some of his opinions from liberal politicians who don’t like that fact.

So for background, I’m reprinting a NewsCut piece today I wrote a year ago, when Stras’ name was mentioned as a potential Supreme Court justice.

According to reports today, David Stras, a justice on the Minnesota Supreme Court, is on the short list of people who would be under consideration to fill Antonin Scalia’s seat if Donald Trump were to be elected president.

Stras has not been, at least from this non-lawyer’s perspective, particularly flashy or even ideologically driven, at least by the standards of the justice he’d replace.

He clerked once for Justice Clarence Thomas, a justice who is an automatic vote for the conservative wing of the court.

When he was appointed by then Gov. Tim Pawlenty, I wondered whether he’d reflect that characteristic. He didn’t.

Here’s an example: Stras aligned with then Justice Alan Page, a member of the court’s more liberal wing, on a case that, coincidentally, has now advanced to the U.S. Supreme Court.

It’s the case of William Bernard, who was stopped by police in South St. Paul after they received a tip that three drunk men had jumped in a pickup truck at the public boat launch on the Mississippi River. Bernard admitted he’d been drinking, but said he wasn’t driving. Under the state’s implied consent rule, he was required to submit to testing without a warrant or face a more serious charge.

The full court embraced a more law-and-order approach to the case, but Page and Stras dissented.

“Its decision is borne of obstinance, not law,” Stras and Page wrote in their dissent, aimed at Chief Justice Lorie Gildea, who, by the way, was appointed by Pawlenty on the same day as Stras. “The court today fundamentally departs from longstanding Fourth Amendment principles, and nullifies the warrant requirement in nearly every drunk-driving case.”

Stras and Page teamed up on a number of big cases in Minnesota, most recently in the January 2016 decision striking down, at least temporarily, the 2011 life-without-parole sentence of Mahdi Hassan Ali, who was involved in the Seward Market killing of three people. Ali was a juvenile at the time of the murders.

Stras’ dissent was on the role of the state Supreme Court to fix a law that was unconstitutional. He argued that it’s not the court’s job to change the language of a law, but to strike down that which is unconstitutional, enforcing that which is not. The rest is up to the legislative branch.

In another case from a year ago, Stras authored the dissent to the majority’s decision allowing survivors of a horrific bus crash in Cottonwood County to seek reimbursement for their expenses that blew past the state cap on payments for expenses caused by an uninsured driver.

In so doing, he focused on the exact wording of the law:

“Inexplicably, however, the court simply refuses to look to the statute’s first sentence, which answers the precise question posed by the court of how to identify the limit of the coverage available from the occupied vehicle in an accident involving multiple victims,” Stras said.

This is the first sentence of the law:

If at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underinsured motorist coverages available to the injured person is the limit specified for that motor vehicle.

“It is quite a logical leap to hypothesize, without any objective evidence, that the Legislature failed to consider the exceedingly common situation in which a car accident results in injuries to multiple people,” Stras wrote.

Justice Gildea and Stras, though appointed by the same governor, often disagreed, as in the 2014 decision that ruled that a 50-year order for protection does not extend to the children of an abused woman. Stras wrote the opinion. This time, Gildea dissented.

“Minnesota law makes clear that an assault against a pregnant woman can also qualify as an assault against her unborn child,” she contended.

And Stras aligned with Page again in a dissent against Gildea in a 2014 decision when it ruled a guardian can order the removal of a feeding tube for a patient without further review.

The two paired also in a 2013 decision that two young African American girls, born to apparent drug addicts, can be adopted by their white foster parents rather than their grandparents, despite a state law that appeared to favor adoption by family members over others.

Stras and Page insisted the decision made the state statute meaningless.

Whether Stras would be a consistent vote on the U.S. Supreme Court, of course, is anyone guess in what is clearly a hypothetical situation.

But it’s highly unlikely that Tim Pawlenty thought he was appointing two occasional opposites when he appointed them to the court and it’s highly unlikely he thought he was appointing an Alan Page ally.

That sort of flexibility can be a pretty good thing for justice. But it’s the sort of thing that can drive a president to choose someone else.