On June 7, 2017, President Donald Trump nominated Colorado Supreme Court Justice Allison Hartwell Eid for the seat on the U.S. Court of Appeals for the Tenth Circuit vacated by U.S. Supreme Court Justice Neil Gorsuch. Eid’s nomination defies the recommendation of the Judicial Conference of the United States, which creates guidelines for the administration of the federal courts, that the vacancy on the Tenth Circuit not be filled due to lack of caseload.
In his rush to fill a seat the bipartisan Judicial Conference has recommended be left vacant, President Trump did not consult with Senator Michael Bennet, as past Presidents did with home state senators of the other party. Instead, the Trump Administration selected an ideologically-driven jurist who will undoubtedly carry out an ultraconservative agenda when elevated to the federal bench. Alliance for Justice opposes Eid’s confirmation.
Eid’s record reveals a jurist who, to an extraordinary degree, adheres to a rigid, ultraconservative partisan ideology. Both in academia and on the Colorado Supreme Court, she sided with Republicans in trying to prevent the creation of more competitive congressional districts and in working to undermine campaign finance laws. Her hostility to public education is notable; she has supported Republican efforts allowing public dollars to finance religious schools, attacks on increases in funding for public schools, and efforts to undermine collective bargaining rights of teachers. She would have made it more difficult for unions to engage in the democratic process, and she supported corporations’ long-term efforts to make it more difficult for consumers to hold businesses accountable. She would have allowed a private company to use eminent domain to build a petroleum pipeline. And, like her former boss, Justice Clarence Thomas, Eid repeatedly turns a blind eye to police misconduct, narrowing critical constitutional protections for those accused of committing crimes. Each of these causes has been championed by the far right.
In fact, in many of these cases and others, Eid’s commitment to rigid ideology has pushed her into being an extreme outlier on the Colorado Supreme Court, taking positions agreed to by none of her colleagues. She was the only justice to side with Republican efforts to prevent more competitive congressional elections (Hall v. Moreno); she was the only justice who would have prevented Colorado from increasing school funding (Mesa County Board of County Commissioners v. State); she was the only justice who would have permitted police to search a cell phone that had been accidently left, temporarily, in a locked bathroom (People v. Schutter); she was the only justice who believed police should have almost unchecked power to search cars without probable cause (People v. Chamberlain and People v. McCarty); and she was the only justice who tried to prevent a town from acquiring land to build a highway (Department of Transportation v. Gypsum Ranch Co.).
Moreover, Eid’s academic writings demonstrate that she is bent on undermining the ability of the federal government to protect the American people. She celebrated cases striking down the ban on guns in school zones and invalidating parts of the Violence Against Women Act. She has advocated for expanding the reach of those cases, promoting a limited reading of the Commerce Clause that has not been adopted since the New Deal. This position would wreak untold harm on everyday Americans who rely on the federal government for critical civil rights, employment, and environmental protections.
Eid’s record also reveals that while she is ostensibly a principled jurist, she in fact is a results-oriented judge who is quick to discard stated principles when it serves corporate interests.
For example, Eid praised federalism and wrote approvingly of Supreme Court cases that restricted Congress’s ability to legislate in areas of the environment and civil rights. Yet her support of “federalism” was faint-hearted; she praised Washington Republican “tort reform” legislation that would have imposed requirements on every civil justice system in the country.
Likewise, Eid has been very hostile to claims by injured individuals trying to hold corporations accountable, as exemplified by her efforts to protect ski resorts and hotels from liability, emphasizing the “burden” on “Colorado businesses” and innkeepers. Yet, when a corporation is a plaintiff, she quickly discards her anti-tort bias. In Koenig v. PurCo Fleet Services, Inc., Eid allowed a rental car company to recover damages from a renter despite failing to show that it had suffered any losses.
Similarly, Eid has firmly established herself as the most outspoken critic of eminent domain on the Colorado Supreme Court. She would have prevented communities from building parks and open spaces, and even highways. But when a corporation is using eminent domain authority, she again jettisons her previously-stated “principles.” In Larson v. Sinclair Transportation Company, Eid dissented from a majority of her colleagues and stood up for the eminent domain rights of a private company to build a petroleum pipeline.
Each of these cases contributes to a startling pattern in Justice Eid’s jurisprudence: An unprincipled departure from previously articulated positions in order to advance corporate interests.
Given that the Judicial Conference has recommended leaving the Tenth Circuit seat vacant, and given that if confirmed, Eid will erode critical constitutional rights and legal protections, AFJ believes that she should not be confirmed.