Gorsuch-like Nominee Eid ‘Inspiration’ as Working Mother

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By Patrick L. Gregory

The would-be appeals court successor to Neil M. Gorsuch is a conservative jurist like the newest U.S. Supreme Court justice.

But Allison Eid also is described as someone with a fierce work ethic who is willing to hear out both sides from the bench, and for two former clerks, a woman who inspired them as a working mother.

A former clerk describes the Colorado Supreme Court justice as a textualist. This means like Gorsuch, she interprets statutes based on their wording rather than their legislative history.

Eid clerked for Justice Clarence Thomas, a textualist who Gorsuch has voted with most often since joining the court this spring.

Her rulings on guns, religion and taxes that are pleasing to conservatives, and a judicial philosophy that lines up squarely with Gorsuch and Thomas will help her with Republicans who lead the U.S. Senate. But the chamber’s Democrats are signaling a tough confirmation road ahead for Trump appeals court nominees.

Still, those who know Eid tout her serious judicial bonafides and her work ethic that have been shaped by years of professional experiences in politics, on the bench and by her personal story.

Raised by Single Mom

Eid “has a pretty incredible story,” Katherine C. Yarger, who clerked for Eid and is now an associate at Gibson, Dunn & Crutcher LLP, Denver, told Bloomberg BNA.

Born in 1965, “she was raised by a single mom in Spokane, Washington, and her mom made incredible sacrifices” to support Eid “and her sister and make sure that they had everything that they needed,” Yarger said.

Eid’s father “was completely out of the picture, and so it was one hundred percent on her mom,” Yarger said.

“I think a lot of Justice Eid’s incredible work ethic and sense of sacrifice and commitment to something greater than herself comes from that experience of watching her mom and watching what she went through to raise her family,” Yarger said.

Conservative Credentials

Eid’s ties to conservatives and Republicans go back at least as far as the late 1980s, when she worked as a speechwriter for Bill Bennett when he served in the Reagan administration as education secretary.

Before landing a clerkship at the high court, Eid clerked for Fifth Circuit Judge Jerry Smith, who is known as a textualist.

Like Thomas and Smith, “I would definitely say she’s a textualist,” Marie Williams, who was Eid’s first clerk at the Colorado Supreme Court and now has an appellate law practice in Lakewood, Colo., told Bloomberg BNA.

In 2002, President George W. Bush appointed Eid to the Permanent Committee for the Oliver Wendell Holmes Devise, which documents Supreme Court history.

Colorado Gov. Bill Owens (R) nominated her to the Colorado Supreme Court in 2006.

She later joined Gorsuch on Trump’s short list of potential U.S. Supreme Court nominees.

Confirmation Fight?

Eid could face significant opposition from Democrats, like other Trump judicial nominees.

Forty-five senators voted against Gorsuch, who was confirmed with 54 votes. Judge Amul Thapar was confirmed to the Sixth Circuit by a 52-44 vote.

Michigan Supreme Court Justice Joan Larsen was nominated May 8, also for the Sixth Circuit, but Michigan’s Democratic senators haven’t yet allowed her nomination to proceed.

If confirmed, Eid would join four active judges on the Tenth Circuit appointed by Republicans and seven appointed by Democrats.

Working Moms Inspired

Two of Eid’s former clerks learned about more than just textualism during their time in Eid’s chambers.

“I look up to her particularly as a woman and as a female attorney with children,” Yarger said.

She’s maintained an extremely successful career “while also really being engaged with her children in every possible way,” Yarger said.

Eid set a great example of how to balance family commitments and a challenging career, Yarger said.

The judge brings a valuable perspective to the bench because “she really understands what it’s like to be a working mom,” Williams said.

She’s “always been very supportive of me” in “trying to figure out how to navigate being a serious legal professional and also being a mom,” Williams said.

Guns, Religion, Taxes

Eid has authored a number of opinions that would likely please social conservatives.

The Colorado Supreme Court allowed a challenge to a college campus gun ban to proceed in a 2012 opinion by Eid, in Regents of Univ. of Colo. v. Students for Concealed Carry on Campus, LLC.

The students claimed that the University of Colorado’s ban violated the Colorado Concealed Carry Act, the court said.

The act’s “comprehensive statewide purpose, broad language, and narrow exclusions” indicated that the state legislature intended to divest the school’s board of regents “of its authority to regulate concealed handgun possession on campus,” the court said.

Eid also weighed in on a dispute involving another hot-button issue—public funding of religious schools—in Taxpayers for Pub. Educ. v. Douglas Cty. Sch. Dist.

She dissented from the court’s 2015 ruling that a county’s taxpayer-funded scholarship program violated the Colorado Constitution’s ban on public funding of religion.

The decision’s interpretation of the ban was “so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to” religious schools, she said.

She also criticized the court’s “steadfast refusal to consider” whether the ban was “unenforceable due to possible anti-Catholic bias” underlying it.

Eid may feel vindicated after the Supreme Court struck down a similar ban in Trinity Lutheran v. Comer.

The justice also dissented from the court’s 2009 ruling that a property tax measure was allowed under the Colorado Constitution’s Taxpayer’s Bill of Rights, in Mesa Cty. Bd. of Cty. Comm’rs v. State.

The state constitution requires voter approval before a “ ‘tax policy change,’ ” Eid said.

Yet the majority effectively authorized “a $117 million tax increase” even though “voters never approved it,” Eid said.

Eid declined Bloomberg BNA’s request for an interview.

Writing, Oral Argument

Eid’s “writing reflects her thinking: focused, direct, and precise,” Chris Chrisman, who clerked for her and is now a partner at Holland & Hart LLP, Denver, told Bloomberg BNA by e-mail.

When “writing for the majority, she gives clear guidance to the lower courts” and “doesn’t lade her writing with unnecessary rhetoric,” Chrisman said.

“I would say her writing style is very clean and very tight,” Yarger said.

At oral argument, Eid isn’t “necessarily going to be the one asking the most questions,” Williams said.

When the justice does ask a question, she’s asking it “for a reason because she’s already thought about it, not because it just occurred to her while she was sitting on the bench,” Williams said.

Ultimately, “whether you agree or disagree with her conclusion” on a matter, “you feel like you’ve been heard,” Chrisman said.

“That’s all any litigating party can ask,” he said.

‘Joy of Federalism’

Since 1998, Eid has served as a professor at the University of Colorado law school, Boulder, Colo., and has continued in that role on the bench.

She was also an adviser to the school’s chapter of the Federalist Society, a conservative organization that promotes federalism and the separation of federal and state powers.

The scholar’s writings have consistently focused on federalism, in which the federal government shares power with the states.

She’s written at least six law review articles with “federalism” in the title.

Eid described the “joy of federalism” in the context of Colorado’s tort reform efforts, in The Tort Reform Debate: A View From Colorado, 31 Seton Hall L. Review 740 (2001).

“Federalism creates competition and diversity among the states; people, in turn, can vote with their feet” and move to another state if they don’t like their own state’s laws, she said.

New Federalism Fan

Eid defended the Supreme Court’s effort to, as she described, “reinvigorate federalism principles in a movement now known as the ‘New Federalism,’” in “ Federalism and Formalism.”

“New Federalism is a revitalization of federalism principles on many doctrinal fronts” including the 10th Amendment, she said.

The 10th Amendment reserves to the states powers not delegated to the federal government by the U.S. Constitution.

The court “has reinvigorated federalism principles without hamstringing Congress,” she said.

“It has set the stage for a robust federalism to develop; the question is whether the nation will take up the challenge,” Eid said.

She responded to criticism of the court’s New Federalism decisions as overly formalistic and rigid.

The critics mistakenly ignored the court’s “efforts to justify its decisions as consistent with the values that underlie the principles of federalism,” such as checking abuses of government power, she said.

‘Here She Comes’

Eid may seem serious about federalism, but former clerks say she loves to laugh.

The justice “has a very loud, infectious laugh,” Williams said.

That laugh made it easy to “hear her getting out of the elevator every morning,” Yarger said.

“We’d always laugh and say ‘here she comes,'—you could hear her all the way down the hall,” Yarger said.

Eid “is one of the warmest, most engaging people that I know,” Chrisman said.

“I’ve never seen anyone work so hard at building relationships with her fellow judges, her clerks, and the court staff,” he said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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