Pos­si­ble choice could fit mold of her men­tor, Clarence Thomas

The Denver Post - - DENVER & THE WEST - By Mark K. Matthews

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.

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