Eid Takes Office

Allison Eid was sworn in Monday as Colorado's newest Supreme Court justice, moments after U.S. Supreme Court Justice Clarence Thomas introduced her to an assemblage of state leaders and guests in the chambers of the state's highest court.

Eid was a clerk for Thomas in 1993 and 1994.

And, so it came to pass that Colorado got a new Colorado Supreme Court justice.

Certainly, Eid has the kind of resume one would look for in a state supreme court justice. Like recently appointed U.S. Supreme Court Chief Justice John Roberts, who served in the U.S. Solicitor General's office before being appointed to the court, Eid was Colorado's solicitor general before her elevation to the state supreme court.

Graduating from Stanford as an undergraduate, from the University of Chicago Law School, and serving as a U.S. Supreme Court clerk are respectable and worthy accomplishments that establish that, whatever other faults Eid may have, she clearly is an intelligent person. And, a tenured position at the C.U. Law School is another mark of her intellectual aptitude.

But, one can't help, as a liberal, to be more than a little concerned about her close ties with Justice Thomas emphasized in her swearing in, which were no doubt, an important consideration in her appointment by Governor Owens. Reading his opinions, both as a Supreme Court Justice and in his prior judicial career, leads one to the pretty inexorable conclusion that Justice Thomas is one of the most mediocre and conservative ideology driven justices to serve on the Court in recent times. And, becoming a U.S. Supreme Court Clerk is not simply a matter of competence. Ideology and temperment absolutely play a role as well. One would hope that Justice Eid will not follow in the footsteps of her U.S. Supreme Court mentor.

Because Colorado's process produced an appointment in just two months, with no meaningful opportunity for public input outside the committee that vetted application for the post and private lobbying of the Governor in his choice from the three names presented to him, we don't have the kind of in depth analysis of Eid's published record that one would commonly see in a federal court appointment to an appellate court position.

Her University of Colorado biography is perhaps most complete. I'll take the liberty of reprinting it here as it will likely not be on the University of Colorado website for much longer as she has presumably left the faculty there:

Associate Professor
Torts; Constitutional Law; Legislation

Educational Background:
J.D. University of Chicago Law School 1991 with High Honors, Order of the Coif
A.B. Stanford University 1987 with Distinction, Phi Beta Kappa

Bio:
An associate professor at the University of Colorado School of Law since 1998, Allison Eid teaches first-year tort law, advanced torts (including product liability, defamation, and economic torts), and legislation. Before joining the faculty of the law school, Professor Eid clerked for the Justice Clarence Thomas of the United States Supreme Court and for Judge Jerry E. Smith of the Court of Appeals for the Fifth Circuit. She also practiced commercial and appellate litigation with the Denver office of Arnold & Porter. Professor Eid has been an active participant in the law school community, having organized the 2001 law review conference entitled "New Structures for Democracy," and served as student clerkship advisor. Her bar activities include service as President of the Colorado Association of Corporate Counsel and as a Colorado Bar Fellow. Dedicated to the classroom, her experience as a speechwriter and special assistant to the then U.S. Secretary of Education, William J. Bennett, has served her well. She has been nominated for the law school's Excellence in Teaching Award. Her manifold abilities have drawn national attention, as President Bush has appointed Professor Eid to the Permanent Committee for the Oliver Wendell Holmes Devise.

Selected Publications:

Eid, Preemption and the Federalism Five, 37 Rutgers L. J. (forthcoming) (2005).
Eid, Teaching New Federalism, 49 St. Louis U. L.J. 875 (2005).
Eid, The Property Clause and New Federalism, 75 Univ. of Colorado Law Rev. 1241 (2004).
Eid, Federalism and Formalism, 11 Wm. & Mary Bill of Rights J. 1191 (2003).
Eid, Justice White's Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism and Judicial Restraint, 74 U. Colo. L. Rev. 1630 (2003).
Eid, Tort Reform and Federalism: The Supreme Court Talks, Bush Listens, 29 Hum. Rights 10 (2002).
Eid, Epsteinian Torts, 25 Seattle U. L. Rev. 89 (2001).
Eid, The Tort Reform Debate: A View from Colorado, 31 Seton Hall L. Rev. 740 (2001).
Eid, A Spotlight on Structure, 72 U. Colo. L. Rev. 911 (2001).
Eid, Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (1990).

Courses:

Spring 2005 Constitutional Law LAWS 6005-801

Her scholarly interests appear clearly focused on federalism and business torts, which are not among the most partisan issues out there (despite their strongly political components) and a state supreme court deals with far fewer strongly partisan issues than the U.S. Supreme Court, in large part because its docket contains a much smaller proportion of public law cases.

Her curriculum vitae certainly indicates that she has spent a great deal of time in conservative political circles at the highest level of the judicial, legislative and executive branches, and both in Colorado and national circles. She wrote speeches for William Bennett, a Republican Secretary of Education in the Reagan Administration, is an advisor to Wayne Allard, the most conservative Republican Senator serving today, has been the faculty advisor to the Federal Society at the University of Colorado since 1998, has been appointed by President Bush to serve in a petty post on the Board of an annual legal lecture, served as a clerk for Judge Jerry Smith on the 5th Circuit Court of Appeals, which is know as one of the most conservative U.S. Court of Appeal Circuits in the country. And, of course, her husband Troy Eid, is a former counsel for Bill Owens and was considered (and eventually dropped out of the race to fill) the U.S. Attorney position in Colorado. (He is currently a candidate for CU Regent at Large and touting his strong support from Wayne Allard in his pursuit of that post.) She was on a short list of possible appointees to the 10th Circuit Court of Appeals by President Bush in 2001.

One might hope that her experience growing up as a child of a single mother in Eastern Washington State, working in Boulder within an academic environment for many years, and the mere fact of being a woman with her own family, might mitigate a tendency towards harshness often associated with conservative views.

One CU student described her, before her appointment as an "Epstein adherent" (referring to libertarian leaning law and economics oriented University of Chicago law professor and textbook author Richard A. Epstein). Some not very helpful in assessing her likely proclivities on the bench discussion of her scholarship is found here, and the only discernable point is that she is likely to favor "states rights". She was endorsed by "the state's tort-reform and business-litigation coalition." One AP story stated that she is "expected to follow her predecessor’s footsteps in some issues important to conservatives: strictly interpreting the law and working to rein in liability lawsuits seeking huge damages."

One of her more political articles, "The Supreme Court Talks, Bush Listens," can be found here, and is basically a political apology and spin piece arguing that the President's push for strong national limitations on damages in medical malpractice cases, despite the fact that this has traditionally been an area of state concern, isn't really anti-state's rights because "The fact that he issued what amounts to a 'federalism impact statement' in connection with his endorsement of the HEALTH Act shows that the Court’s 'think twice' message is coming through loud and clear."

Of course, the difference between being a law professor and being a judge, is that while a law professor can spend a great deal of time thinking about what the law should be, a state court judge is hemmed in by precedent, statutes, federal law and the other six members of the court. Rebecca Kourlis, whom Eid replaces, was sufficiently limited by these constraints that she left the court entirely to pursue law reform. Given these constraints, it is hard to tell how much of a role ideology will play in her rulings.

Inevitably, for every judge at this level, it does play a role. Judges have a great deal of freedom to interpret the law at the state supreme court level. Indeed, to a far greater extent than federal judges, they have the authority to directly craft common law rules in areas where statutes are silent. Legislating from the bench is part of the job description of state supreme court judge. But, how much of a role ideology plays has a great deal to do with her attitude towards the doctrine of stare decisis. If she believes that prior precedents of the court should receive a great deal of deferrence, she may not make much of an impact at all. On the other hand, if she feels that some underlying view of the legal system, or absolute set of economic principals ("Spenser's Laws of Social Statics" was the catch phrase in another era), trumps precedent in most cases she could be quite an "activist" conservative judge who could significantly change the legal environment in Colorado over time.