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With Stras’ Appointment, The Minnesota Supreme Court Lurches Right

by Hegemommy on May 15, 2010 · 2 comments

As pointed out by Big E, the rise of David Stras from relative legal obscurity to Associate Justice of the Minnesota Supreme Court might make for just the perfect metaphor for Governor Pawlenty’s exit. Stras has scant legal experience in the state, but his conservative bona fides are deep, making him perhaps the most dangerous appointment to the Court in decades.
Now, I’m not going to attack Stras for a lack of courtroom experience, because, it’s kind of hard to judge just how much experience he has. As a member of the appellate practice group at Faegre & Benson, we know that Stras was involved in at least two cases as an attorney-of-record, and given the way Biglaw works, it’s a safe assumption that Stras consulted on a number of other briefs as well.
Knowing how Faegre operates, it’s also a safe assumption that Stras was brought on to the group to provide an insider’s take on appellate advocacy, and that alone provides some insight into the kind of justice he will be. There’s a universe of difference between trial attorneys (my tribe) and appellate attorneys (Stras’ tribe). Trial attorneys are the folks dealing with the day-to-day realities of the law. Appellate attorneys, on the other hands, are much more like academics, which makes sense since Stras is also a member of the University of Minnesota Law School faculty. Appellate attorneys view the law in the vacuum of theory, divorced from the realities and effects of any given decision.
Aside from the unallotment case, it would appear that Stras was directly involved with only two cases–both of which demonstrate a cold preference for business interests over public good and individual rights. In the first, Norfolk & Western Railway Co., v. Ayers, 123 S.CT. 1210 (2002), Stras argued against allowing railroad workers to recover emotional distress damages stemming from their fear of developing cancer once they learned that, throughout the course of their employment, the railroad had negligently exposed them to asbestos. Stras’ clients had sought to limit the amount of damages connected to their negligence as simply correlated to actual costs of treatment. Thankfully the Supreme Court disagreed.
But perhaps even more telling is an unpublished 2009 decision where Stras and his client, GAMC, argue against a TARP requirement that prevented mortgage lenders from refusing homeowner requests for loan modifications to prevent foreclosure. Williams v. Geithner, 2009 WL 3757380 (D.Minn. 2009).
The cumulative conclusion from the three cases we have is that, given the opportunity, Stras will align with corporate interests over government interests at every given opportunity.  Stras is Minnesota’s own Sam Alito, a hard-right conservative that couches a corporatist ideology in the rhetoric of “limited government” pushed by his Federalist Society cohorts.
Make no mistake about it, his appointment sends the Minnesota Supreme Court lurching toward the right. While Chief Justice Magnuson was by no means a leftist, as a member of the Minnesota bar I’m hard pressed to categorize him as an ideologue. He was, by all accounts, a fair jurist who became increasingly disillusioned with the polarizing political climate created by Pawlenty and his national ambitions.
Now, under the guidance of another ideologue in Chief Justice Gildea, Minnesota finds itself with a Court hostile to any interests other than big business. In the wake of the Citizens United decision and the ongoing efforts by the legislature to remedy that decision, this should make any reasonable Minnesotan, regardless of political affiliation, stop and take pause.
Stras is young and he is strident. Minnesota is left with the devil’s bargain of hoping his ambition places him in line for a federal appellate appointment sometime in the future under the next Republican presidential administration rather than a lifetime crafting Minnesota law.

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