Possible choice could fit mold of her mentor, Clarence Thomas
Ten years ago, when Bill Owens needed to fill a seat on the Colorado Supreme Court, the Republican governor got some advice from a high-profile source: U.S. Supreme Court Justice Clarence Thomas.
The conservative jurist wrote Owens with the recommendation that he select Allison Eid, one of his former clerks and then the state’s solicitor general, to replace Justice Rebecca Kourlis.
“Allison did not vacillate because others disagreed,” Thomas wrote. “Rather, she engaged in constructive debate about very difficult matters, always looking for a way to solve the problem.”
Owens agreed and appointed Eid to the bench in 2006, saying he wanted to “appoint a conservative.”
Thomas attended her swearing-in ceremony and now, if a number of pieces fall into place, he could be seeing a lot of more Eid — this time in Washington, D.C.
She is among the 21 candidates that President-elect Donald Trump has floated as picks to the high court, and Colorado legal experts said Eid likely would fit the mold of her former mentor.
(Also on Trump’s list are Neil Gorsuch and Timothy Tymkovich, two judges with the Denver-based U.S. Court of Appeals for the 10th Circuit.)
Eid’s clerkship with Thomas appears to have “shaped her in a lot of ways, both in terms of political orientation and approach to problem-solving,” said Rich Benenson, co-chair of the litigation department at the Denver firm Brownstein Hyatt Farber Schreck.
One example Benenson cited was a 2008 case dealing with eminent domain, the controversial practice that gives government an avenue to take private property in exchange for proper compensation. The tool often is used to facilitate the construction of highways or public utilities, but the 2008 case Eid helped decide had a different ring.
The town of Telluride wanted to condemn nearly 600 acres of property outside its borders for use as open space — an action opposed by the property owner. The case went to the Colorado Supreme Court, which ruled in favor of Telluride, but Eid dissented.
Although she acknowledged “open space is a vital resource that Colorado must protect,” in this situation she wrote that “unlike the majority, I would continue our cau-
tious stance towards extraterritorial condemnations in the case before us today.”
Reflecting on that dissent, Benenson said it was an early sign of how Eid looks to be cut from the same cloth of Thomas and former Justice Antonin Scalia, two judges known as “constructionists” or “originalists” for their view that government’s power is limited unless specifically spelled out by the Constitution.
For Eid, the eminent domain case is a “good example of strict constructionist and also traditional Republican views,” Benenson said.
Through a spokesman, Eid declined an interview request, but some of her past writings, decisions and affiliations are in line with that kind of philosophy.
Her life’s path has influenced her too. She was raised by a single mother in Spokane, Wash., and at the time of her 2006 appointment, Eid said the experience of growing up without a silver spoon — and having to earn scholarships to schools such as Stanford University — had a real impact.
“It is these values I hope to bring to my work on the court,” said Eid, 51, who has two children and is married to Troy Eid, a former U.S. attorney for the District of Colorado.
Before her time on the Colorado Supreme Court, Eid served as a professor at the University of Colorado’s law school, and in 2002 she wrote about a series of U.S. Supreme Court cases and how they could affect the then-nascent administration of President George W. Bush.
“The Court’s message appears to be that the federal government should think twice before it injects federal regulations into a state’s business,” Eid wrote. “While the Court’s audience appears primarily to be Congress, there is no question that the Bush administration is listening as well — as it should.”
While at CU, Eid also served as an adviser to the school’s chapter of the Federalist Society, a legalminded club that advocates for conservative or originalist approach to the law. It was there where Eid met future U.S. Sen. Cory Gardner, a Colorado Republican who could play a critical role in shepherding her nomination through the Senate if Trump picks her.
“I had the privilege of working with Allison Eid while I was a law student at the University of Colorado, and had the opportunity to see firsthand her careful approach to law,” Gardner said in a statement. “Throughout her career, Allison has proven that she is a commonsense jurist who is committed to interpreting the law, not dictating it. The Founders of our nation intended judges to be guardians of the Constitution, and her approach to the law reflects that.”
During her decade on the bench, Eid has brought that conservative and constructionist approach to several of the court’s biggest cases.
Last year, she dissented, in part, when the Colorado Supreme Court rejected a school voucher program in Douglas County that many parents planned to use as a way to pay for education at religious institutions.
The court found the effort conflicted with a prohibition on the use of public money for religious schooling, though Eid took issue with that interpretation.
She questioned the validity of that prohibition given its ties to past bigotry against Catholics and their schools. Calling it a “serious error,” she asked whether it was “unenforceable due to possible anti-Catholic bias.”
In another major case, Eid wrote the opinion for the court in striking down a ban on guns at CU campuses — though that unanimous decision is seen by legal scholars as a narrow interpretation of state law and not a broad foray into the question of whether the Second Amendment allows students to arm themselves on campus.
“That was a very mainline case … not a constitutional case,” said Richard Collins, a professor at the CU Law School. “I don’t think that tells you much about her attitude on gun issues.”
Eid also wrote the opinion of the court in a 2015 case that affirmed employers can fire their workers for marijuana use, as the drug is still illegal at the federal level.
The “term ‘lawful’ refers only to those activities that are lawful under both state and federal law,” she wrote in another unanimous opinion.