Senate confirms Justice Stras to federal bench

WASHINGTON – Minnesota Supreme Court Justice David Stras won Senate confirmation to the Eighth Circuit Court bench on Tuesday, becoming the first appellate nominee in decades to earn a seat over the objection of a home-state senator.

Stras' nomination was delayed for months by former Sen. Al Franken, D-Minn., who argued that Stras was qualified for the job but too conservative for a lifetime appointment to a federal appeals court. After Franken himself was sidelined by controversy that led to his resignation, Senate Republicans did away with the long-standing tradition of "blue-slipping" that allowed home-state senators to unilaterally derail circuit court nominees.

Minnesota's two Democratic senators split on the Stras vote. Sen. Amy Klobuchar joined a bipartisan majority voting to seat Stras. Sen. Tina Smith, newly appointed to fill Franken's seat this month, voted against it. Stras was confirmed by a vote of 56-42. In a statement after the vote, Klobuchar echoed recent remarks in favor of Senate consideration for Stras by highlighting the judge's history of respecting precedent "in the vast majority of cases" in his seven years on the Minnesota Supreme Court.

"While I do not agree with all of his decisions, after carefully reviewing his record I determined that he is qualified to serve on the Eighth Circuit Court of Appeals," Klobuchar said.

Smith said she voted no because of concerns over what she described as Stras' embrace of a conservative judicial philosophy called "textualism," in which jurists adopt a rigid interpretation of the Constitution's original meaning.

Smith cited an exchange during Stras' confirmation hearing last year in which Stras said he would begrudgingly apply a hypothetical overturning of the U.S. Supreme Court's landmark Brown v. Board of Education civil rights decision. Smith said Stras reiterated his stance when she asked him about it.

"I may not agree with the way in which Justice Stras approaches every decision that comes before him, but I think it's important to understand how he grapples with questions of basic justice — questions where the case demands more than simply a rote application of precedent, but instead requires that judges fully appreciate the moral gravity of the questions presented," Smith said. "Justice Stras' judicial philosophy does not leave room for that kind of decisionmaking, and I decided to vote against him."

Minnesota Republicans were eager to weigh in on Tuesday.

"Justice David Stras is a brilliant jurist and is exceptionally qualified to serve on the U.S. Court of Appeals for the Eight Circuit," said state Sen. Karin Housley, R-St. Mary's Point, who is challenging Smith in this November's special Senate election. "While I was pleased to see bipartisan support … for his confirmation, I was disappointed that Senator Tina Smith chose to ignore Justice Stras' compelling qualifications and record of judicial service by voting against his confirmation."

Gov. Mark Dayton, meanwhile, congratulated Stras Tuesday, thanking him for his service on the state's highest court while announcing the beginning of a search to fill the seat vacated by Stras. A judicial selection committee will be taking applications through Feb. 27 before following up with interviews on March 16.

Stras was nominated in May by President Donald Trump, but his path through the Senate skidded to a halt in September, when Franken withheld his blue slip. In November, as Franken was hit with a series of sexual harassment allegations, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, ruled that single senators could no longer tie up appellate-level nominees.

Stras, 43, clerked for Supreme Court Justice Clarence Thomas and also for appellate judges in the Ninth and Fourth circuits. He grew up in Wichita, Kan., and graduated from the University of Kansas School of Law in 1999, where he edited the Kansas Law Review Criminal Procedure Edition.

Stras was appointed to the Minnesota Supreme Court in 2010 by then-Gov. Tim Pawlenty, a Republican, and was a law and political science professor at the University of Minnesota from 2004 until his appointment.

A longtime member of the Federalist Society, a national conservative group, his name has appeared on a shortlist of potential U.S. Supreme Court nominees released by the Trump administration.

But Stras' nomination had been endorsed by both conservative and liberal colleagues in Minnesota, who described him as a conservative who deferred to the law as its authors intended — not ideology — to shape decisions.

Jennifer Brooks • 202-662-7452