Eric Tostrud, a Minneapolis based attorney and law professor, is part of a package deal of nominees made between the Trump Administration and Minnesota’s Democratic senators.  Like his fellow nominee Nancy Brasel, Tostrud should be seen as a consensus nominee.

Background

A native Minnesotan, Eric Christian Tostrud was born in St. Paul on June 14, 1965.  Tostrud received his B.A. cum laude from St. Olaf College in 1987 and then a J.D. summa cum laude from the William Mitchell College of Law in St. Paul.[1]

After graduation, Tostrud clerked for Judge Edward Devitt on the U.S. District Court for the District of Minnesota and Judge George MacKinnon on the U.S. Court of Appeals for the D.C. Circuit. In 1992, he joined the Minneapolis office of Lockridge Grindal Nauen PLLP as an Associate.[2]  He was made a Partner at the firm in 1998, and became Of Counsel in 2014.[3]  He continues to practice as Of Counsel at Lockridge to this day.[4]

In 1993, Tostrud began teaching at Mitchell Hamline School of Law (formerly William Mitchell, his alma mater) as an Adjunct Professor.[5]  His title became Distinguished Practitioner in Residence in 2015.[6]  Additionally, Tostrud has been an Adjunct Professor at the University of Minnesota Law School since 2011.[7]

History of the Seat

Tostrud has been nominated for a seat on the U.S. District Court for the District of Minnesota.  This seat opened on October 31, 2016, when Judge Donovan Frank moved to senior status.  As the seat opened with only three months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In November 2016, Tostrud applied for the judgeship with Minnesota Senator Amy Klobuchar (D-Minn).[8]  In January 2017, he also applied to the parallel application process conducted by Rep. Erik Paulsen (R-Minn).[9]  His name was submitted by Paulsen to the White House in June.

Meanwhile, Klobuchar (D-Minn) and the Trump Administration began negotiations over two vacancies on the U.S. District Court.  They ultimately agreed on Tostrud, Paulsen’s candidate, and Minneapolis Judge Nancy Brasel, who was supported by Klobuchar.[10]  President Trump announced both Brasel and Tostrud on July 13, 2017.[11]

Legal Career

Other than his clerkships and his position as a law professor, Tostrud has spent his entire legal career at the same firm: Lockridge Grindal Nauen PLLP (Lockridge).  At the firm, Tostrud worked in complex civil litigation, focusing on the Employee Retirement Income Security Act of 1974 (ERISA).[12]  Notably, Tostrud represented the Hartford Life & Accident Insurance Co. in defending many ERISA claims.[13]

In another notable case, Tostrud represented many hospitals in defending against antitrust claims brought by a group of nurse-anesthetists, successfully moving for summary judgment and defending the judgement on appeal.[14] In another case, Tostrud successfully defended against a class action suit alleging failure to provide insurance discounts.[15]

Since 2014, Tostrud has been a full-time law professor, teaching Federal Civil Procedure, Advanced Civil Procedure, and Electronic Discovery at Mitchell Hamline School of Law.[16]  Additionally, he has taught Federal Jurisdiction at the University of Minnesota Law School.[17]

Political Activity

Tostrud has had a close relationship with Paulsen, having served as his Finance Chairman on his state legislative and congressional campaigns.[18]  He has also been a generous donor to other Republicans, giving $10,000 to the Republican Party of the 3rd Congressional District of Minnesota in 2016, as well as donating to former Speaker John Boehner and Sen. Marco Rubio.[19]  However, Tostrud also donated $1000 to Sen. John Kerry (D-Mass.) in 2003.[20]

Writings

In 2001, Tostrud authored a letter to the editor for the Minnesota Lawyer discussing the Supreme Court’s recent 5-4 decision in Board of Trustees of the University of Alabama, et al. v. Garrett et al.[21]  The decision had held that the Eleventh Amendment barred citizens from suing states for violations of the Americans with Disabilities Act (ADA).  In the letter, Tostrud is critical of the decision.[22]  Specifically, he notes that the decision is contrary to the plain text of the Eleventh Amendment, stating:

“When the Supreme Court openly disregards the actual words of the Constitution to reach an outcome, the consequences can be grave.”[23]

Overall Assessment

As with his paired nominee, Nancy Brasel, Tostrud is a consensus nominee.  While Tostrud has a longer record of political donation and activity than Brasel, it is important to note that political activity should not, in and of itself, disqualify nominees for the bench.  Furthermore, Tostrud has the support of Klobuchar, who is well respected on both sides of the aisle, and who will help him navigate the confirmation thicket.

If confirmed, Tostrud will likely be a moderate-conservative jurist.  Looking at his 2001 letter to the editor, Tostrud appears to advocate a focus on the “plain text” of the Constitution in interpretation, an approach generally identified with conservatives.  However, the letter itself applies that interpretation to support a “liberal” result, and one advocated by the Supreme Court’s liberal dissenters.  This suggests, not necessarily that Tostrud is a liberal or a conservative, but rather that his focus is on getting the law correct, rather than the outcome.

Given these factors, Tostrud should be comfortably confirmed alongside Brasel, restoring the Court to full strength.

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