Anthony Kennedy retirement returns David Stras to Supreme Court speculation

Just five months since Judge David Stras joined the Eighth Circuit U.S. Court of Appeals, his prospects for an appointment to the U.S. Supreme Court got new life Wednesday upon news of Justice Anthony Kennedy's retirement.

President Donald Trump on Wednesday promised to pick his next nominee from a previous list of 25 judges that included Stras. Those close to Stras have told the Star Tribune that his appearance on Trump's shortlist caught the now-former Minnesota Supreme Court Justice by surprise.

And, after Trump selected Stras for a federal appellate judgeship last year, he kept Stras on a revised version of the list announced late last year.

Stras became the first federal appeals court judge to win confirmation over the objection of a home-state senator in more than 30 years. Former Sen. Al Franken refused to back Stras' nomination, citing a "lack of meaningful consultation" with the White House over the nomination, coupled with the role of conservative legal groups in advising the judicial selection process. Franken's replacement, Sen. Tina Smith, also voted against Stras' nomination.

But Sen. Amy Klobuchar, who introduced Stras at his committee hearing last year, vocally supported Stras' nomination and voted alongside a handful of other Democrats to confirm the judge. He also had letters of support from a wide swath of the Minnesota legal community, including justices from the state Supreme Court's more liberal wing, with whom Stras would occasionally side.

Trump has relied on the advice of conservative legal minds like Leonard Leo, vice president of the Federalist Society, in shaping his approach to judicial selection. Leo has singled out Stras — also a member of the Federalist Society — as a "leading conservative intellectual" who figured to be among the newly appointed federal judges who would "shape the law for two generations."

Senators also examined Stras' appearance on Trump's shortlist during his committee hearing last year. Franken asked Stras if he had said to anyone that he had been told that he would be the first Supreme Court nominee chosen after he joined the Eighth Circuit.

"I have not had anyone discuss that with me, and I have made promises to no one on how I would rule," Stras replied.

Stras is viewed as taking an "originalist" approach to interpreting the Constitution "as it is written" — a common phrase in his Supreme Court writing, and a quote Trump echoed in this year's State of the Union address to describe the crop of federal judges so far confirmed during his term.

Stras clerked for U.S. Supreme Court Justice Clarence Thomas in the early 2000s and, in an interview with the Star Tribune earlier this year, described him as a mentor and close friend. But he also identified retired Justice Alan Page as another jurist integral to shaping his judicial philosophy. Stras was joined on roughly one-third of his Minnesota Supreme Court dissents by Page, then one of the court's more progressive judges.

"Justice Page said, and Justice Thomas had a variation of this: 'We can't always be right … the least we can do is be consistent," Stras said.

Stephen Montemayor • 612-673-1755

Twitter: @smontemayor