I spent many years working on judicial nominations, both during my tenure as a senator and when I served in the White House as vice president. I have seen how fundamental it is to the American system of government that the courts receive bipartisan support.
Over time, the Senate and the executive branch have developed a set of traditions that help ensure that the judiciary can support ideological diversity without leaning too far into overt partisanship. In Minnesota and other states, the president, when making a judicial nomination, consults with the judge’s home-state senators to identify the best candidates. Those senators can then signal their approval or block the nomination in committee. Most often, having contributed to the selection of the nominee, senators do approve.
President Barack Obama and his predecessors followed this tradition. President Donald Trump has ignored it, a disruption of the long-standing process. For reasons that can only be interpreted as purely partisan, he has refused to consult with Democratic senators on judicial appointments.
Many senators have rightfully regarded this approach as an encroachment into the institutional role of Congress. Oregon’s Senate delegation has expressed in writing its disapproval of Trump’s approach, noting that the administration was “only interested in our input if we were willing to preapprove your preferred nominee.” The senators feared Trump’s unilateral approach would “return us to the days of nepotism and patronage” and could result in “unfit judges on the bench.” The delegation announced its intent to block any nominee who was not approved by a bipartisan selection committee.
Here in Minnesota, U.S. Sen. Al Franken has responded in similar fashion. He has opted to oppose one of Trump’s judicial appointees, Justice David Stras of the Minnesota Supreme Court, who has been nominated for the Eighth U.S. Circuit Court of Appeals.
Last week, a Star Tribune editorial sharply criticized Franken for this decision, accusing him of contributing to partisanship in the judiciary.
I respectfully but strenuously disagree. Franken has acted appropriately in defense of Senate procedure — and he is also right to oppose Stras on the merits. As the chief author of the Fair Housing Act, I am greatly concerned about what Stras’ confirmation could mean for the act and other civil-rights laws.
It is true that blocking Justice Stras is a bold action, but it was precipitated by Trump’s own failure to include Minnesota senators in the selection of judicial nominees. It is unreasonable to ask that Franken defer to a Senate tradition while a partisan White House ignores that very same tradition. Without the participation of the White House, Franken cannot single-handedly restore comity to the Senate — and in attempting to do so, he would risk being played for a sucker.
Given the White House’s intransigence, it is proper for Franken to independently evaluate Trump’s judicial nominees and decide whether they are right for Minnesota’s federal courts. Franken has decided against Justice Stras. I agree.
Republicans have built an efficient pipeline to the judiciary, through which hard-right legal thinkers can be cultivated for the highest federal courts. The process is well-known by now. A judge will participate heavily in the Federalist Society and similar groups, but maintain an ambiguous record about the most far-reaching constitutional issues. Because state and lower courts are less likely to decide those issues, a judge’s true leanings become apparent only once he or she receives lifetime tenure on a federal appeals court, or even the Supreme Court itself.
Justice Stras has received the blessing of the right-wing judicial pipeline. He was active in the Federalist Society, and he has emphasized his connection to jurists like Justices Clarence Thomas and Antonin Scalia. Last year, Trump placed Stras’ name on a shortlist of potential U.S. Supreme Court nominees, in an effort to placate Republicans unnerved by his candidacy. It’s fair to assume that conservative activists would not consider giving a Supreme Court seat to someone whose record is ambiguous or neutral.
I am especially troubled by indications, previously raised on the Star Tribune’s opinion page, that Stras will make decisions that are harmful to core civil-rights issues, such as school integration and fair housing. Stras has expressed skepticism about important Supreme Court precedent that currently protects civil rights.
Having constructed a partisan judicial pipeline, Republicans are quick to lob accusations of partisanship at anyone who is concerned about its role. It is to Franken’s credit that he was willing to voice such concerns aloud, and ultimately act on them. It is both his prerogative and duty to act in the best interests of the state he has the honor of representing. The best interests of this state are not served when its senators are rubber stamps for judicial nominations. They are certainly not served by allowing national partisan organizations to pick Minnesota’s judges.
I encourage a return to normal Senate procedure. We are blessed with two strong senators who serve with diligence and wisdom. I hope Sen. Franken will soon be able to work with the administration to find the judicial nominees who are best for Minnesota. In the meantime, faced with difficult conditions, he is simply doing his job, and doing it well.
Walter F. Mondale is a former vice president of the United States and former U.S. senator from Minnesota.