The following commentary by Myron Orfield was posted on the Star Tribune website August 29, 2017:
The justice’s record must be evaluated. Specifically, there’s reason for concern over his views on civil-rights precedents.
In his Aug. 25 commentary “Partisan game-playing blocks an outstanding judge,” U.S. Rep. Erik Paulsen criticized U.S. Sens. Al Franken and Amy Klobuchar for halting Minnesota Supreme Court Justice David Stras’ appointment to the Eighth U.S. Circuit Court of Appeals.
In my view, Klobuchar and Fran-ken are exhibiting appropriate diligence. My own work focuses on civil rights and school integration, and Stras’ previous statements have left me deeply concerned about the impact of his appointment within these areas. Indeed, there is reason to believe that Stras might frustrate ongoing voluntary school integration in Minnesota.
To be clear, I am not concerned that Justice Stras is a conservative or a Republican. This is to be expected under a Republican president, and neither forecloses support for civil rights. Instead, it is his apparent skepticism of important federal civil-rights decisions that troubles me.
U.S. Supreme Court Justice Anthony Kennedy is a Republican and a conservative, but time and again he has expressed powerful support for the ideal of an integrated society. In a landmark school integration case in 2007, Kennedy held, with four other justices, that there was a compelling governmental interest in school integration. This decision protected the opportunity for school districts around the country to voluntarily integrate themselves.
All federal courts have thus far recognized Kennedy’s opinion as the law of the land. But when Stras wrote about the case, he argued that the opinion was receiving “way too much emphasis,” that it should not be given “controlling weight” and even that following it would be “dangerous.”
If appointed to the Eighth Circuit, would Stras not follow Kennedy’s opinion or would he counsel lower courts not to follow it? It’s important to know, because many voluntary integration plans hang in the balance — including here in Minnesota, where Stras’ view would place the Hopkins, Eden Prairie and Apple Valley districts in legal jeopardy.
In 2007, Kennedy concluded by reminding the Supreme Court that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.”
Stras, in his words and writings, has suggested he’d prefer that judges worry less about their “moral and ethical obligations” to the country. Stras once lamented that the Supreme Court’s “ventures into the contentious areas of social policy — such as school integration, abortion and homosexual rights” have politicized judicial nominations.
Contrary to his suggestion, these are not subjects outside the bounds of the law, but at the heart of it — questions that, one way or another, affect the lives of tens of millions of Americans.
Federal judgeships are lifetime appointments. Successful picks will have the opportunity to leave their imprint on the law for decades to come. Judge Gerald Heaney, for whom I served as a clerk , was appointed by President Lyndon Johnson in 1966 and sat on the Eighth Circuit for 40 years. (Stras, as it happens, is younger now than Heaney was at the time of his appointment.)
Heaney was a civil-rights icon, convinced of the importance of school integration and the rights of racial minorities and the disadvantaged. Sadly, the Eighth Circuit is no longer so supportive of those ideas. Important civil-rights cases often receive hostile treatment in Minnesota’s federal appellate courts — arguably even more than in the notorious Fifth Circuit, which includes Mississippi, Louisiana and Texas.
Perhaps this goes without saying, but President Donald Trump does not seem like the man to reverse this trend. He appears to have little appreciation for the role of the judiciary in safeguarding civil rights; when judges ruled against his Muslim ban, he trashed them publicly. Thus Trump’s nominees to our circuit deserve — to borrow a legal term — strict scrutiny.
It appears to have been national advocacy networks that brought Stras to Trump’s attention. Here, too, is cause for concern: For instance, Stras has received support from the Heritage Foundation, a think tank opposed to most civil-rights law and any form of proactive school integration.
It is not hard to see why many conservatives favor Stras. He clerked under Clarence Thomas, the Supreme Court’s most conservative justice, and he has described Thomas as his mentor. But Thomas also has a poor track record on civil rights. In a 2003 case focusing on affirmative action, Thomas wrote a vitriolic dissent attacking diversity as a “faddish slogan of the cognoscenti” and mocking “the conspiracy theorist’s belief that ‘institutional racism’ is at fault for every racial disparity in our society.” Stras was working for Thomas at the time and noted in a later interview that “we all had a hand” in the opinion.
Going forward, we must be assured that judicial confirmations on the Eighth Circuit will treat fundamental civil-rights questions with wisdom, conscientiousness and restraint — not avoid or diminish them.
Myron Orfield is the Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota.
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