EPPC President Ed Whelan is offering running commentary on the nomination of Neil M. Gorsuch to the U.S. Supreme Court. Mr. Whelan, a former law clerk to Justice Scalia, is a regular contributor to National Review Online’s Bench Memos blog. [Click here to view Mr. Whelan’s full bio and past publications.]

 

 


VIDEO: Ed Whelan on Georgetown Law Panel on Gorsuch Confirmation Process

VIDEO: Vice President Mike Pence Highlights Ed Whelan’s Praise of Neil Gorsuch

VIDEO: Ed Whelan at Heritage Foundation Panel “What Kind of Judge is Neil Gorsuch? A Closer Look at His Cases” (Mr. Whelan’s opening remarks run from 27:50 to 41:50.)


Storify: Ed Whelan on a Potential Gorsuch Filibuster Fight

Storify: Ed Whelan Explains How the Filibuster Operates “Asymmetrically” Against Conservative Supreme Court Nominees


Selected Publications

Below is an index to a selection of Mr. Whelan’s commentary from NRO on the Gorsuch nomination, followed by the full text of the posts:





A Supreme Successor to Justice Scalia

January 31, 2017

On the Saturday afternoon last February when he received word of Justice Scalia’s death, Neil M. Gorsuch “immediately lost [his] breath” and “couldn’t see . . . for the tears.”

In his grief over the death of a justice he deeply admired and emulated, Judge Gorsuch could hardly have imagined the series of events that would lead to his being selected today to fill the Scalia vacancy. And while he has rightly recognized that no one could ever replace Justice Scalia, there are strong reasons to expect Justice Gorsuch to be an eminently worthy successor to the great justice.

Gorsuch is a brilliant jurist and dedicated originalist and textualist. He thinks through issues deeply. He writes with clarity, force, and verve. And his many talents promise to give him an outsized influence on future generations of lawyers.

Gorsuch’s judicial outlook is reflected in his beautiful speech (text and video) celebrating — and embracing — Justice Scalia’s traditional understanding of the judicial role and his originalist methodology:

Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

In that speech, Gorsuch acknowledges that Justice Scalia’s project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner. He explains why he rejects those critics and instead sides with Justice Scalia in believing that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” The Constitution itself carefully separates the legislative and judicial powers. Whereas the legislative power is the “power to prescribe new rules of general applicability for the future,” the judicial power is a “means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.” This separation of powers is “among the most important liberty-protecting devices of the constitutional design.” Among other things, if judges were to act as legislators by imposing their preferences as constitutional dictates, “how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes.” Indeed, the “very idea of self-government would seem to wither to the point of pointlessness.”

As Gorsuch put it (in Cordova v. City of Albuquerque), the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams . . . , but a carefully drafted text judges are charged with applying according to its original public meaning” (emphasis added). In his one foray as a National Review Online contributor, in 2005 (before he took the bench), Gorsuch lamented that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

Gorsuch’s Judicial Record, in Brief

At 49 years of age, Gorsuch has already served for more than a decade on the U.S. Court of Appeals for the Tenth Circuit, which reviews decisions of the federal district courts in the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. His judicial record (which I am detailing more extensively in a series of posts on NRO’s Bench Memos blog) is remarkably impressive.

On issues of religious liberty, Gorsuch has an especially strong record. In 2013, he determined that Hobby Lobby was entitled under the federal Religious Freedom Restoration Act to relief from the HHS Obamacare mandate that would have required it to provide its employees insurance coverage for abortifacient drugs and devices. (By a 5–4 vote, the Supreme Court ruled in favor of Hobby Lobby in 2014.) In 2015, he objected vigorously to a Tenth Circuit ruling that held that the massive fines that the Obama administration threatened to impose on the Little Sisters of the Poor for refusing to facilitate insurance coverage for contraceptives and abortifacients did not seriously implicate their religious liberty. (In 2016, the Supreme Court sent the case back to the Tenth Circuit to enable the government to work out a more sensible approach.)

Gorsuch has also fought against a hyper-expansive reading of the establishment clause that would exclude religion from the public square. In 2009 (in Green v. Haskell County Board of Commissioners), he disputed a panel decision that ruled that a county’s Ten Commandments display was unconstitutional. He memorably complained that the panel’s hypothetical “reasonable observer” — whose imagined perceptions dictate what does and does not violate the establishment clause — was not “someone who got things right” but was instead “an admittedly unreasonable” observer who “just gets things wrong” “because, the panel tells us, our observer is from a small town, where such errors cannot be helped.” In another case (American Atheists, Inc. v. Davenport), he disagreed with a panel ruling that Utah violated the establishment clause when it allowed the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths. The Tenth Circuit’s “reasonable observer,” in his view, “continues to be biased, replete with foibles, and prone to mistake” (as well as “a bit of a hot-rodder”).

Gorsuch has earned special acclaim for his insights on administrative law and separation of powers. In an opinion last August (Gutierrez-Brizuela v. Lynch), he argued that the Supreme Court’s precedents on deference to reasonable agency interpretations of law “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” He called for the Supreme Court to reconsider whether the so-called Chevron doctrine of deference is sound. In another recent opinion (United States v. Nichols), he said that Congress had gone too far in delegating power to an agency to decide what conduct is criminal: For Congress to “effectively pass off to the prosecutor the job of defining the very crime he is responsible for enforcing” is “by any plausible measure . . . a delegation run riot, a result inimical to the people’s liberty and our constitutional design.”

Gorsuch has had only one case involving the matter of abortion (Planned Parenthood of Utah v. Herbert). Last October, he dissented strenuously when the Tenth Circuit refused to reconsider a panel ruling in favor of Planned Parenthood’s Utah affiliate. The panel had granted Planned Parenthood a preliminary injunction against the Utah governor’s directive to state agencies to stop acting as intermediaries for federal funds flowing to Planned Parenthood. Gorsuch faulted the panel for failing to accord the appropriate degree of deference to the district court’s factual findings and for making its own bizarre inferences about the governor’s reasons for acting.

In a case involving a firearms conviction (United States v. Games-Perez), Gorsuch protested that “people sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.” In support of his interpretation of the statute, Gorsuch invoked, quoting Justice Thomas, the “long tradition of widespread lawful gun ownership by private individuals in this country” and the Supreme Court’s recognition that the Second Amendment “protects an individual’s right to own firearms and may not be infringed lightly.”

On criminal law and procedure, Gorsuch has a strong and balanced record. He has protected the privacy rights of Americans while respecting the proper powers of the police. Reversing a lower court, he concluded that when law-enforcement officers open and examine private e-mails, they are engaging in a search governed by the Fourth Amendment. He has argued, in dissent, that a homeowner who posted No Trespassing signs all over her property didn’t consent to police entering her property and knocking on her front door. But he has also explained that the Fourth Amendment must be applied in a manner that “takes a realistic view of human capacities and limitations.”

Gorsuch has complained that the overcriminalization of “so many facets of daily life [means] that prosecutors can almost choose their targets with impunity.” He has insisted that laws and regulations provide clear notice of what is prohibited, and he has prevented police officers from being held personally liable for conduct that wasn’t clearly unlawful.

Rocky Mountain Roots

Neil Gorsuch combines an appealing Rocky Mountain profile with a stellar personal history. He has deep roots in his hometown of Denver and absorbed his work ethic from his family. One of his grandfathers worked his way through law school with a job as a streetcar conductor in Denver. The other grew up in an Irish tenement in Denver and, at the age of eight, began working to support his family as a porter at a train station. Both of his parents were lawyers in Denver. His mother, Anne Gorsuch Burford, was one of the first women to work as a prosecutor in Denver, was twice elected to the Colorado legislature, and was President Reagan’s first head of the EPA.

In his youth, Gorsuch worked a variety of everyday jobs: shoveling snow, moving furniture, working the front desk at a Howard Johnson’s hotel. He also developed a lifelong love of the outdoors.

Gorsuch has a distinguished academic pedigree, with an undergraduate degree from Columbia, a J.D. from Harvard law school (in the same 1991 class as Barack Obama), and a doctorate (as a Marshall Scholar) from Oxford. In his courageous book The Future of Assisted Suicide and Euthanasia, he propounds the principles that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”

After law school, Gorsuch was hired as a law clerk by D.C. Circuit judge David Sentelle and then by Supreme Court justice, and Colorado legend, Byron R. White. Because Justice White retired shortly before Gorsuch’s clerkship began, Gorsuch, in addition to assisting White, doubled as a clerk for Justice Anthony M. Kennedy.

After his clerkships, Gorsuch joined a D.C. law firm, where he quickly became a partner and litigated for a decade. In 2005, he left private practice to serve as deputy associate attorney general in the U.S. Department of Justice.

With the support of both Colorado senators — including Democrat Ken Salazar — President Bush nominated Gorsuch to a Tenth Circuit judgeship in 2006. The American Bar Association judicial-selection panel unanimously gave Gorsuch its highest rating of well-qualified. The Senate confirmed him unanimously, by voice vote, barely two months after his nomination.

Judge Gorsuch’s path to confirmation — this time to become Justice Gorsuch and a fit successor to Justice Scalia — should again be smooth and swift.


Judge Gorsuch and Religious Liberty

January 31, 2017

Judge Gorsuch has a very impressive record in favor of religious liberty—and against a hyper-expansive reading of the Establishment Clause that would exclude religion from the public square.

In Hobby Lobby Stores v. Sebelius (2013), Gorsuch joined in full the en banc lead opinion that (1) held that Hobby Lobby, a closely held corporation, had standing to sue under RFRA, that it had established a likelihood of success on its claim that the HHS contraceptive mandate violated its RFRA rights, and that it had shown an irreparable harm, and (2) opined for a plurality that Hobby Lobby had satisfied the other factors (balance of equities and public interest) necessary for a preliminary injunction.

Gorsuch (joined by two other judges) also wrote separately to explain why the Green family members who owned Hobby Lobby were also entitled to relief under RFRA as individuals.

The Supreme Court affirmed the Tenth Circuit in Burwell v. Hobby Lobby Stores (2014). (The question of the RFRA rights of individual owners of closely held corporations was not before the Court.)

In Little Sisters of the Poor v. Burwell (2015), Gorsuch joined a brief opinion (for five judges) that dissented from the denial of rehearing en banc of a panel decision that ruled that the HHS mandate’s accommodation for nonprofits did not “substantially burden” the religious liberty of the Little Sisters of the Poor within the meaning of RFRA, even though it subjected them to massive fines for refusing to execute documents in violation of their religious beliefs. The dissent (authored by Judge Hartz) soundly states:

The opinion of the panel majority is clearly and gravely wrong — on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

The dissent makes clear that it is addressing only the question of substantial burden and that it would “return this case to the panel to determine whether the certification requirement is the least restrictive means of furthering a compelling governmental interest.”

The Supreme Court granted certiorari in this case and in various other challenges to the accommodation, but then (in Zubik v. Burwell) issued a non-decision that declined to address the merits of the claims and instead remanded the cases so that the parties could work things out.

In Green v. Haskell County Board of Commissioners (2009), the Tenth Circuit, on a tie vote of six to six, failed to grant rehearing en banc of a panel decision that ruled that a county’s Ten Commandments display violated the Establishment Clause. Gorsuch (joined by three colleagues) wrote a memorable dissent in which he complained (among other things) that the panel majority’s “reasonable observer” (under Lemon’s dubious endorsement test) was not “someone who got things right” but was instead “an admittedly unreasonable” observer who “just gets things wrong” “because, the panel tells us, our observer is from a small town, where such errors cannot be helped.”

In American Atheists, Inc. v. Davenport (2010), the Tenth Circuit denied en banc review of a panel ruling that Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths. Gorsuch joined one dissent from the denial of rehearing en banc and wrote another. The dissent that he joined argued that the panel began with a presumption of unconstitutionality, that it employed an unreasonable “reasonable observer,” and that it denied that a religious symbol can also have secular meaning. In his own dissent, Gorsuch complained that the Tenth Circuit’s “reasonable observer” “continues to be biased, replete with foibles, and prone to mistake.” He also opined that it is “far from clear” whether “even the true reasonable observer/endorsement test remains appropriate for assessing Establishment Clause challenges.”


Judge Gorsuch and Administrative Law

January 31, 2017

Judge Gorsuch is very attentive to the separation-of-powers concerns that modern administrative law presents.

In Gutierrez-Brizuela v. Lynch (2016), Gorsuch, writing for a unanimous panel, granted an illegal alien’s petition for review of a Board of Immigration Appeals order that he was ineligible to apply for lawful residency. In a separate concurrence, Gorsuch argued that the Supreme Court’s rulings in Chevron v. Natural Resources Defense Council (1984) (courts must defer to an agency’s reasonable interpretation of an ambiguous statute that it administers) and NCTA v. Brand X Internet Services (2005) (courts must overrule their own rulings about the meaning of existing laws in favor of later agency interpretations that satisfy Chevron) “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gorsuch called for the Supreme Court to reconsider whether the Chevron doctrine is sound.

It’s worth emphasizing that the Chevron rule of judicial deference to administrative agencies obviously has no inherent ideological valence. How it operates in practice depends on who is running the agencies. The Tenth Circuit’s earlier rulings on the legal issue in Gutierrez-Brizuela illustrate the point: The court’s de novo interpretation of the statutes in 2005 yielded a result much more favorable to illegal aliens than the court’s 2011 decision deferring to the BIA.

Chevron itself was a unanimous ruling by a six-member Court. (Three justices were recused.) Justice Scalia had been, at least until late in his judicial career, one of the most ardent advocates of Chevron. Academic supporters and critics transcend the usual ideological lines. See, e.g., Jack Beermann, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled,” 42 Connecticut Law Review (2010).

Folks on the Left who fear what a Trump administration might do may acquire a sudden new appreciation for de novo (rather than deferential) judicial review of agency action. Overruling Chevron would force Congress to take more accountability for its lawmaking and would discourage it from simply punting issues to the bureaucracy.

In United States v. Nichols (2015), Gorsuch dissented from the Tenth Circuit’s denial of en banc rehearing in a case that presented the question whether a federal law, the Sex Offender Registration and Notification Act, required convicted sex offenders to notify authorities if they planned to leave the country. (The Supreme Court granted review in this case and ruled that the law did not require notice.) In addition, Gorsuch highlighted an underlying constitutional question: whether it was permissible for SORNA to delegate to the Attorney General the authority to decide whether and when sex offenders convicted before the date of SORNA’s enactment were required to comply with the law’s registration requirements. Gorsuch’s opinion probes the contours of the nondelegation doctrine and concludes that a law like SORNA that would have Congress “effectively pass off to the prosecutor the job of defining the very crime [i.e., nonregistration] he is responsible for enforcing” is “[b]y any plausible measure … a delegation run riot, a result inimical to the people’s liberty and our constitutional design.”


Gorsuch Speeches

January 31, 2017

1. Here are the text and video of a beautiful speech by Supreme Court nominee Neil Gorsuch last April, titled “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia.” In that speech, Gorsuch celebrates and embraces Justice Scalia’s understanding of the judicial role and his originalist methodology. An excerpt:

[P]erhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

2. Here are the text and video of Judge Gorsuch’s Barbara K. Olson Memorial Lecture in 2013. That speech includes Gorsuch’s criticism of the overcriminalization of our laws. A long excerpt:

Without question, the discipline of writing the law down, codifying it, advances the rule of law’s interest in fair notice. But today we have about 5000 federal criminal statutes on the books, most added in the last few decades. And the spigot keeps pouring, with hundreds of new statutory crimes inked every few years. Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars actually debate their number.

When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to “federalize everything that walks, talks, and moves.” Maybe we should say hoots, too, because it’s now a federal crime to misuse the likeness of Woodsy the Owl or his immortal words, “Give a Hoot, Don’t Pollute.” Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag: yes, they’re probably federal criminals too. Whether because of public choice problems or otherwise, there appears to be a ratchet clicking away relentlessly, always in the direction of more—never fewer—federal criminal laws.

Some reply that the growing number of federal crimes isn’t out of proportion to our growing population. Others suggest the recent proliferation of federal criminal laws might be mitigated by allowing the mistake of law defense to be more widely asserted. Others still suggest prosecutorial discretion can help with the problem.

But however that may be, isn’t there still a troubling irony lurking here? Without written laws, we lack fair notice of the rules we must obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

The sort of excesses of executive authority invited by too few written laws helped lead to the rebellion against King John and the sealing of the Magna Carta—one of the great advances in the rule of law. But history bears warnings that too much and too much inaccessible law can lead to executive excess as well. Caligula sought to protect his authority by publishing the law in a hand so small and posted so high no one could be sure what was and wasn’t forbidden. (No doubt, all the better to keep everyone on their toes. Sorry .…) In Federalist 62, Madison warned that when laws become just a paper blizzard citizens are left unable to know what the law is and cannot con- form their conduct to it. It is an irony of the law that either too much or too little can impair liberty. Our aim here has to be for a golden mean. And it may be worth asking how far we might have strayed from it.


Two American Constitution Society Leaders Support Gorsuch

February 6, 2017

From 1995 to 2005, Supreme Court nominee Neil Gorsuch practiced law at the elite D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. Here’s a powerful letter from dozens of his former law partners, “Democrats, independents, and Republicans” who “represent a broad spectrum of views on politics [and] judicial philosophy” but who “all agree on one thing”: Neil Gorsuch “is superbly qualified” for the Supreme Court and “is a man of character, decency, and accomplishment.”

Notable among the letter’s signatories are two individuals who are part of the “leadership” of  the American Constitution Society (the left-wing counterpart to the Federalist Society)​: David Frederick, a member of ACS’s board of directors, and Geoffrey Klineberg, a former Blackmun clerk who is on ACS’s board of advisors (and was formerly on its board of directors).

Some further excerpts from the letter:

Throughout his time with us, Neil demonstrated both a powerful intellect and a sterling character. In every aspect of his private practice, Neil excelled. He was a skilled and creative trial lawyer, a legal draftsman of concision and wit, and above all else a wonderful colleague who devoted himself fully to the best interests of our clients and was a pleasure to work with.

We saw Neil in times of professional triumph as well as in times of disappointment. Through highs and lows he was steadfast: courteous, collegial with co-counsel and adversaries, respectful of courts and the rule of law itself. He was as considerate and respectful of the night guard at our trial office in Paducah, Kentucky, as he was of captains of industry. He never displayed bias or hostility against anyone, and earned friends and admirers wherever he went.

Neil’s equal regard for everyone extended to his work as a litigator. He zealously represented all of his clients – plaintiffs and defendants, individuals and corporations, nonprofits and small businesses, paying clients and pro bono clients – without regard to ideology. For Neil, each client deserved the best arguments that could be mustered, consistent with the facts and the law.…

Neil is not only a good and humble man, he is also an outstanding jurist. We are fully confident that he will decide cases on principled grounds; that he will work tirelessly to get each case right, on its particular merits; that he will be thoughtful about the views of his colleagues, and will deliberate respectfully and productively to reach consensus where that is possible; and that he will demonstrate the integrity and ability that we all saw in our years as his colleagues.


Prominent Progressive Lawyer: No Reason to Vote No on Gorsuch

March 9, 2017

In this Washington Post op-ed, prominent appellate lawyer David C. Frederick, “a longtime supporter of Democratic candidates and progressive causes” and a member of the board of directors of the left-wing American Constitution Society, explains to his fellow Democrats why “there is no principled reason to vote no” on the nomination of Neil Gorsuch to the Supreme Court.

Frederick praises Gorsuch (his “former law partner and longtime friend”) as “brilliant, diligent, open-minded and thoughtful.” Frederick also refutes the wildly distorted attacks that various groups on the Left have launched (and that I’ve critiqued in various posts collected here). An excerpt:

As a judge on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has not been the reflexive, hard-edged conservative that many depict him to be. He has ruled for plaintiffs and for defendants; for those accused of crimes as well as for law enforcement; for those who entered the country illegally; and for those harmed by environmental damage.

Anyone who sees Gorsuch as automatically pro-corporation should talk to the officers at Rockwell International and Dow Chemical, against whom he reinstated a $920 million jury verdict for environmental contamination at the Rocky Flats nuclear facility. Executives at U.S. Tobacco Company might also be wringing their hands at the moment, given that Gorsuch, as an attorney, helped to attain one of the largest antitrust verdicts in history against the company.


Diverse Group of Law School Classmates Support Gorsuch

March 9, 2017

Dozens of Neil Gorsuch’s Harvard Law School classmates—“Democrats, Republicans, Libertarians and independents; progressives, conservatives and moderates; religious and non-observant; married, single and divorced; men and women; straight and gay”—have signed a powerful letter setting forth why they support his Supreme Court nomination.

Among the signatories is prominent Democrat Norm Eisen, who was special counsel for ethics in President Obama’s White House (as well as ambassador to the Czech Republic).

Excerpts from the letter:

[W]e attended law school with Judge Neil Gorsuch—a man we’ve known for more than a quarter century—and we unanimously believe Neil possesses the exemplary character, outstanding intellect, steady temperament, humility and open-mindedness to be an excellent addition to the United States Supreme Court….

Judge Neil Gorsuch is a person for all seasons. For Republicans, Neil personifies a disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by his decisions. For Democrats, he is a reasonable, qualified, intelligent person who will give each case fair and impartial consideration on its merits with sensitivity to our nation’s history, values, aspirations and constitutional traditions. For all Americans, he is a person of integrity who respects the rule of law and will ensure that it applies equally to all.


ABA Committee Unanimously Awards Gorsuch Its ‘Strongest Affirmative Endorsement’

March 10, 2017

The American Bar Association’s Standing Committee on the Federal Judiciary has unanimously awarded Supreme Court nominee Neil Gorsuch its highest rating of “Well Qualified.”

Here’s the Committee’s fuller explanation (emphasis added) of what “Well Qualified” means for a Supreme Court nominee:

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement.


The Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

March 15, 2017

In her opening statement at her 1993 confirmation hearing (transcript here), Ruth Bader Ginsburg explained that she could “offer no forecasts, no hints” on how she might rule on issues that might come before the Supreme Court:

You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process. [Emphasis added.]

As she put it later in responding to a question about possible constitutional protections against discrimination based on sexual orientation:

I cannot address that question without violating what I said had to be my rule about no hints, no forecasts, no previews. [Emphasis added.]

Instead, she explained, the Senate should “judge [her] qualifications principally on [her] written record” of judicial rulings, briefs, and articles,” and she was happy to discuss those at her hearing.


More on the Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

March 16, 2017

A follow-up to yesterday’s post on the Ginsburg Standard:

As then-Judge Ginsburg explained at her confirmation hearing (transcript here), her record of opinions, law-review articles, speeches, and briefs provided the “most tangible, reliable indicator of [her] attitude, outlook, approach, and style” as a judge. Insofar as the hearing sought “helpful clarifications” of that record, it served a useful and legitimate purpose. But insofar as it instead sought to induce her to offer “forecasts” or “hints” about how she might rule in cases that might come before her, she regarded herself as ethically bound not to provide any such forecasts or hints.

Adhering steadfastly to the Ginsburg Standard is not easy, as Ginsburg herself observed: “I appreciate now more than ever how difficult it is for the [nominee] to maintain that line [i.e., the line ‘between judicial philosophy and votes in particular cases’] and not pass beyond it into forecasting or giving hints about votes in particular cases.” Part of the reason that steadfast adherence isn’t easy is that it’s politically tempting to win praise for endorsing popular precedents and for criticizing unpopular ones. (Some Democrats have argued that Ginsburg didn’t live up to her stated standard; as I explained way back during the Roberts nomination, that would be an indictment of Ginsburg, not an argument against the Ginsburg Standard.)

When senators ask a Supreme Court nominee to state whether the nominee believes that a particular precedent was rightly decided, they are either (a) seeking to have the nominee offer a hint on how the nominee would rule in a case that arguably involves the meaning or scope of that precedent on a matter that involve, or (b) using the precedent as a proxy for exploring the nominee’s judicial philosophy. Even when the inquiring senator has the latter motivation, answering the question risks giving a hint and thus violating the Ginsburg Standard.* Plus, there are plenty of other available means to explore the nominee’s judicial philosophy.

In short, the most sensible and principled way to apply the Ginsburg Standard is to refuse to answer any question about whether a particular precedent was rightly decided, except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might foreseeably come before the Court.

An additional reason to take this approach is that appellate judges decide cases by reading briefs, conducting oral argument, and conferring with each other. But a question whether a judge believes that a particular precedent was rightly decided seeks to shortcut this deliberative process, and answering that question (in the absence of careful study of the case) gives the impression that judging is little more than picking the results one likes.

* Linda Greenhouse misses this elementary point when she oh-so-cleverly advises senators: “Don’t accept the standard nominee response that ‘I can’t answer because that question might come before the court.’ It has already come before the court.” (Emphasis in original.)


Nominee Kagan: No Comment on Whether Precedent Is Correct

March 20, 2017

As I explained last week, the Ginsburg Standard means that a Supreme Court nominee should refuse to answer any question about whether a particular precedent was rightly decided (except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might come before the Court.

At her confirmation hearing, Justice Elena Kagan adopted exactly this approach: “I do not think it would be appropriate for me to comment on the correctness of a precedent of the Court.” (Written responses, answer to Sessions question #14.) When asked to “name the more poorly reasoned Supreme Court case, in your view, of the last fifty years” (emphasis added), she replied:

I do not think it would be appropriate for me to grade recent decisions of the Supreme Court, as the status of those cases as precedent and their application to new factual circumstances are issues that may come before the Court. One relatively recent decision (although not in the last 50 years) that was poorly reasoned and that is unlikely to come before the Court again is Korematsu v. United States, 323 U.S. 214 (1944). [Answer to Cornyn question #22 (emphasis added).]

Time after time during oral questioning and in her written responses, she refused invitations to express her opinion on dozens of cases.


No Deal

March 23, 2017

Politico reports that some Senate Democrats might try to pursue a deal with Senate Republicans that would “allow confirmation of [Supreme Court nominee Neil] Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent [Supreme Court] vacancy during President Donald Trump’s term.”

There is no reason for any Senate Republicans to entertain this foolish deal. Such a deal would give Senate Democratic leader Chuck Schumer a preemptive veto over the next Supreme Court nominee.

If Senate Democrats are serious about filibustering the Gorsuch nomination, that shows that there is no plausible nominee of a Republican president whom they wouldn’t filibuster—and no one worthwhile who would ever get Schumer’s okay.

It’s time to put Senate Democrats to the test. If they defeat cloture on the Gorsuch nomination (by preventing 60 yes votes on cloture), the only sensible response from Senate Republicans is to do what Senate Democrats boasted they would do in the same scenario: abolish the filibuster for Supreme Court nominees.

It makes no sense for Republicans to allow a double standard under which Supreme Court nominees of a Republican president are subjected to a filibuster but Senate Democrats, when back in the majority, would be free to abolish the filibuster for Supreme Court nominees of a Democratic president.


Jeffrey Toobin Smears Gorsuch

March 27, 2017

The New Yorker’s Jeffrey Toobin has penned a hit piece on Supreme Court nominee that plumbs new depths of incompetence.

1. When I first skimmed the piece, I was struck by Toobin’s discussion of the TransAm trucker case. Here’s his entire account of the positions taken by the majority and by Gorsuch’s dissent:

The majority in the case called the dismissal unjustified, but Gorsuch said that the driver was in the wrong.

But, as I’ve explained (and as ought to have been obvious to anyone who paid attention to the hearing), the panel wasn’t deciding whether the company’s dismissal of the trucker was generally “unjustified.” Rather, it was deciding whether a specific whistleblower provision, which makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle” because of safety concerns, barred the firing. Far from maintaining that “the driver was in the wrong,” Gorsuch merely concluded that the whistleblower provision did not apply:

[T]hat statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department [of Labor] would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place. [Italics in original; underlining added.]

Gorsuch didn’t defend the company’s conduct. He simply opined that the company hadn’t violated the whistleblower provision:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Gorsuch’s dissent, which Toobin mislabels as being “of almost Gothic cruelty,” is all that Toobin offers for his claim that Gorsuch has a “predilection for employers over employees.”

2. As I looked more carefully, I discovered that Toobin’s piece was a cavalcade of folly. Some examples:

a. Toobin claims that “Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court’s prior rulings.”

Did Toobin actually watch any of the hearing? Gorsuch specifically stated that judging is not a matter of applying “algorithms.” Further, he treated precedent only as thestarting point, and, far from ever claiming that precedent is sacrosanct, referred repeatedly to the various factors (discussed in the 900-page book on precedent that he recently co-authored) that bear on whether and when precedent should be overturned.

b. Toobin asserts that Gorsuch’s “background also includes a dose of pro-corporate, deregulatory libertarianism, as reflected in his close relationship with the billionaire Philip Anschutz, a client turned mentor.”

I’ve seen Anschutz described as a conservative Christian, not a libertarian, and if there was anything in Gorsuch’s legal work that advanced the cause of “pro-corporate, deregulatory libertarianism,” I don’t see it in this New York Times account of Gorsuch’s relationship with Anschutz. As a Tenth Circuit judge, Gorsuch has recused himself from all cases involving Anschutz and his companies, and, per NYT, the continuing “close relationship” consists of little more than Gorsuch’s being a “semiregular speaker” at Anschutz’s “dove-hunting retreats.”

c. Toobin claims, “A sampling of authoritarianism can be seen in Gorsuch’s service in George W. Bush’s Justice Department, where he helped craft a proposal for the treatment of detainees at Guantánamo.” But the proposal Toobin is referring to was the bipartisan Detainee Treatment Act, which aimed to clarify the handling of detainees suspected of terrorism. The Senate approved the two separate measures that comprise the Act by votes of 90-9 and 84-14. That’s sure some “authoritarianism.”

d. Of Gorsuch’s 320-page book against assisted suicide, Toobin claims, “It’s easy to read the book as a coded attack on abortion rights.” Yeah, right: a 320-page code that has a footnote that specifically disclaims addressing the abortion issue. Toobin gives no sign that he’s read a page of the book.

e. Toobin claims that “Gorsuch would embrace the deregulation of campaign finance” and, as his sole support for that proposition, states that Gorsuch “argued in an opinion that judges should evaluate limits on political contributions using the same tough standards that they apply to racial discrimination.” But, as he testified (and as I’ve shown), Gorsuch made no such argument but instead highlighted the “conflicting cues” that Supreme Court precedents provided.

f. Toobin claims that Gorsuch was “taking a side in the culture wars” when he and his fellow members of the en banc majority in the Hobby Lobby case “ruled that a multibillion-dollar corporation could withhold federally guaranteed rights to birth control from thousands of female employees because of the religious beliefs of the corporation’s owners.”

The reader would have no idea that the ruling vindicated the “federally guaranteed rights” of religious liberty that the federal Religious Freedom Restoration Act provided, nor that the corporation was closely held (rather than public). Far from “taking a side in the culture wars,” Gorsuch merely enforced the text of federal religious-liberty laws, just as he has done on behalf of a Native American prisoner seeking access to a sweat lodge and a Muslim prisoner seeking halal food.

g. Toobin finds it “embarrassing” for Gorsuch that the Supreme Court “unanimously rejected one of his holdings” on the second day of his testimony. Never mind that the actual case before the Court wasn’t Gorsuch’s but a follow-on. Toobin doesn’t inform his readers that liberal Clinton appointee Mary Beck Briscoe joined Gorsuch’s unanimous opinion nor that they were seeking to apply circuit precedent.

h. Toobin claims that, by not acting on President Obama’s nomination of Merrick Garland, “the Republicans denied Obama his constitutional right.” But Obama did not have a “constitutional right” to have Garland confirmed. He had a constitutional power to nominate Garland, and he exercised that power. The Senate had a constitutional power to block that nomination, and it exercised that power. Simple as that.


Fellow Students Refute Student’s Claim of Sexist Gorsuch Comments

March 21, 2017

NPR reported yesterday that Jennifer Sisk, a “former law student of Judge Neil Gorsuch, … alleges that that in a course she took from Gorsuch at the University of Colorado Law School last year, the judge told his class that employers, specifically law firms, should ask women seeking jobs about their plans for having children and implied that women manipulate companies starting in the interview stage to extract maternity benefits.”

But a slew of students who took the same ethics course from Gorsuch—some in the same class as Sisk—are powerfully refuting her claim. From their accounts, it seems quite clear that Sisk (who has Democratic ties) was misunderstanding Gorsuch’s devil’s-advocate posturing of hypotheticals.

In a letter to the Senate Judiciary Committee, Baker Arena, a student in the same class as Sisk and a self-described “liberal feminist Democrat,” explains:

In the Legal Ethics class I took from Judge Gorsuch, the textbook we used contained numerous hypothetical ethical dilemmas that attorneys could potentially face in their practice. Judge Gorsuch would use these dilemmas in the textbook in his lectures to illustrate the fact that there are few black and white solutions to the ethical issues attorneys face daily. Adept at challenging the views of students (and sometimes frustratingly so), Judge Gorsuch would use the Socratic method and play devils advocate in his lectures as the class debated the appropriate course of action to confront the ethical issues at hand. If a valid point was made in favor of one course of action, he would present counterfactual points to illustrate the compelling arguments in favor of another course of action. Through the constant debate of ethical dilemmas that semester, we left with a greater appreciation of the nuances attorneys must account for in making ethical decisions consistent with our code of professional responsibility.

I was present in the class at issue and sat directly in front of the accusing student. I recall the hypothetical ethical dilemma discussed in the lecture that day. In that hypothetical ethical dilemma, a female law student, suffering financial hardship, is asked at an interview if she planned on having children and using the firms maternity leave policies. The female student in the hypothetical was planning on having children but nervous to tell the potential employer, for fear she might not get the position. Judge Gorsuch began to lead the class in debate as to what the appropriate course of action should be for the female law student. Judge Gorsuch made compelling points about the numerous issues and subtle discrimination women face in the workplace that many men are oblivious to. In fact, as a man, I had never really considered the extent of pregnancy related discrimination that women face in the workplace until this very class. True to form (and the Socratic teaching style), Judge Gorsuch also presented counterarguments presenting the hardships employers face due to paid maternity leave policies, which I, as a liberal feminist Democrat, as well as the majority of my colleagues rejected.

During Judge Gorsuch’s presentation of such counterarguments, I do not recall him accusing women of taking advantage of paid maternity leave policies, much less espousing such accusations as his personal beliefs. In class and in our conversations outside of class, Judge Gorsuch was always extremely respectful, inclusive, tolerant and open-minded. Additionally, Judge Gorsuch’s never shared his personal views on legal or ethical matters in class and was somewhat of an enigma. Had he made the statements he is accused of making, I would have surely noticed as they would be out of his character and had he said such things, I potentially would have even said something to him concerning these statements. That is not the Judge Gorsuch I know.

Ruthie Goff, who took Judge Gorsuch’s legal ethics class in 2015, writes (link to come):

I purposefully took Ethics with [Judge Gorsuch], because I wanted to be pushed and challenged on the difficult questions I would face as a woman entering the legal community. That’s exactly what his class did. Judge Gorsuch asked tough and sometimes uncomfortable questions, and I appreciated every one of them.…

One such scenario asked us to consider whether or not an employer can ethically ask a female applicant if she plans to have a family soon. At first, I thought absolutely not because that’s not fair nor can that be ethical. The discussion proceeded much in that way until Judge Gorsuch finally revealed employers are not prohibited from asking that question but only from making the final decision based on that answer. That’s the rule and the law. As much as I disagreed, I understood why the Judge pushed us so hard. The point was to get us to understand that the law will challenge us to resolve difficult issues in ways that we may not agree with, but in a way we have a legal and ethical duty to do so. During this discussion, I never felt as though he was expressing his personal belief regarding the scenario but was doing his job in remaining neutral and guiding us to an understanding of how we must sometimes divest ourselves of personal beliefs in order to apply the rules of ethics and the rule of law.”

Will Hauptman, who was also in the same legal ethics class as Sisk, has also written to the Committee to “refute the … veracity” of Sisk’s claim:

Although Judge Gorsuch did discuss some of the topics mentioned in [Sisk’s] letter, he did not do so in the manner described. The judge frequently asked us to consider the various challenges we would face as new attorneys. Among those challenges were balancing our desire to perform public service with our need to pay off student loan debt, and the tension between building a career in a time-intensive profession and starting a family and raising children—especially for women. The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time. The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group. And despite the soberness that these topics sometimes imparted on the class, our conversations were always respectful and cordial.

It is clear that my classmate and I have a different account of what happened in class. But had Judge Gorsuch truly made the statements described in the letter, I would remember—the statements would have greatly upset me. And I would not be writing you in support of the judge if I felt he would not treat all people with equal dignity.

Jordan Henry, a female student who took Judge Gorsuch’s ethics class in the fall of 2016 (one semester after Sisk), tells the Committee that Sisk’s allegations “in no way reflect my experience with Judge Gorsuch as a professor and a mentor.” In what seems like a discussion of the same textbook hypothetical, Henry writes:

I recall a day in class that was devoted to diversity and some of the issues that face women and others in the profession. The textbook noted that there is a lot of attrition among women lawyers. Judge Gorsuch encouraged discussion on this point and asked students to share their experiences. I shared an experience where I was asked about family planning in a job interview and the overriding concern seemed to be whether I would need maternity leave. Judge Gorsuch thanked me for sharing my experience and used it to demonstrate that gender inequality in the profession was not just theoretical, but something that may occur to the classmate sitting next to us. He prepared us to confront these issues when they arise.

Catherine Holgrewe, who took Judge Gorsuch’s ethics class, has issued this statement (link to come):

Judge Gorsuch was an exemplary professor and treated every student with absolute respect. He took an active interest in our educational and professional success. Judge Gorsuch always made time in his busy schedule to further discuss class materials and offer professional advice and support. I have never heard Judge Gorsuch ever speak disrespectfully to or about anyone. As a former student, I am a witness to the respect that he showed towards his female students and fellow professors at Colorado Law. The supposed remarks he made in his 2016 Legal Ethics class are completely out of character and I find very hard to believe are accurately relayed.

Nathan Davis, another student in Sisk’s class and “a life-long Democrat,” attests (link to come):

I have no recollection of Judge Gorsuch acting in the manner described in the letter, nor do I remember Judge Gorsuch making any insensitive or chauvinistic remarks at any point during the semester. I was fully aware that my professor was a federal judge and am certain that I would recall such outlandish behavior. Nothing I witnessed at any point gives me any reason to question Judge Gorsuch’s moral fitness to serve on the Supreme Court.

Kate Waller, who took classes in both legal ethics and antitrust from Judge Gorsuch, states (link to come):

[Judge Gorsuch] never demonstrated anything but the utmost respect and integrity for all students and viewpoints. Judge Gorsuch believed in unbiased, well-reasoned arguments, and never appealed to emotions or politics.

While I was not in the class during which the alleged incident occurred, I can unequivocally say that I never witnessed him make any discriminatory statements about women or other minorities, nor demean or belittle anyone. He expected his students to appeal to logic and he demonstrated the same levelheaded, apolitical focus on reason over emotion.

Glen Matthews writes (link to come) of Judge Gorsuch’s ethics course:

Every week Judge Gorsuch did what was expected from him in the Ethics class he taught at the University of Colorado School of Law. I was a student in his class my final semester of law school. During each class, he posed provocative legal ethical questions and hypotheticals to his class. The class at issue was no different in that we explored difficult issues and topics that affect nearly all parents in the legal profession; specifically, how will the obligations of being an attorney impact my ability to effectively parent? Additionally, we discussed the ethical implications, if any, of applicants applying for jobs while knowing they were soon planning to start or expand their families.

The tone and tenor of that discussion seemed similar to ethical discussions we had about disclosing a client’s secrets after their death, or how the rising cost of a legal education creates a disincentive to enter public service. The point of this class was to explore difficult ethical questions—questions with no easy answers. Judge Gorsuch’s comments in this instance were in keeping with the dilemmas posed, which were admittedly difficult, and were not inappropriate or demonstrating bias.


Democrats’ Empty Case Against Gorsuch

March 13, 2017

This New York Times article on Democrats’ “most prominent planned line of attack” on Supreme Court nominee Neil Gorsuch shows that they have no ammunition.

Here’s how the article sums up the Democrats’ two-pronged attack:

[1] Judge Gorsuch’s rulings have favored the powerful and well connected. [2] And he has done little, they will say, to demonstrate his independence from a president whose combative relationship with the judiciary has already clouded the nominating process. [Bracketed numbers added.]

Let’s consider these two prongs:

1. In the article, Democrats manage to cite a grand total of three cases (out of some three thousand during Gorsuch’s judicial career) in support of their charge:

a. “In one case, Judge Gorsuch argued in a dissent that a company was permitted to fire a truck driver for abandoning his cargo for his own safety in subzero temperatures.”

As I’ve explained in this extended account, the legal question in the case was whether a whistleblower provision that protects a driver when he “refuses to operate a vehicle” because of safety concerns protected a trucker who (as Gorsuch put in in his dissent) “chose instead to operate his vehicle in a manner he thought wise but his employer did not.” As Gorsuch points out, “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.” Nor is there any law giving judges free rein to second-guess whether an employer’s decision to fire an employee “was a wise or kind one.”

In short, Gorsuch was dispassionately applying the law.

b. “In another [case], he ruled against a family seeking reimbursement under a federal disabilities law for the cost of sending a child with severe autism to a specialized school.”

I addressed this case in the second half of this post. I’ll note briefly here that Gorsuch’s opinion was unanimous, that it was joined by a very liberal Clinton appointee (Mary Beck Briscoe), and that it steadfastly sought to follow a 1982 Supreme Court precedent that it cited some twenty times. So it’s difficult to see how Democrats could make effective use of this case.

c. “Then there was the professor who lost her job after taking time off to recover from cancer: Judge Gorsuch denied her federal discrimination claim, saying that while the predicament was ‘in no way of her own making,’ it was ‘a problem other forms of social security aim to address.’”

I addressed this case in the first half of this post. Once again, we have a unanimous Gorsuch opinion joined by a very liberal Clinton appointee (Carlos Lucero this time). (The article notes this, but oddly doesn’t do the same for the autism case.)

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, the professor had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions.

d. As the article notes, “Judge Gorsuch’s defenders have accused Democrats of cherry-picking.” At his hearing, Gorsuch and Senate Republicans will have plenty of cases to cite to show that Gorsuch neutrally applies the law.

It’s not Gorsuch’s job to be a “friend of the little guy” (as the article’s headline sums up the Democrats’ position) or a friend of the big guy or a friend of any party. So, yes, individuals whose plights win our sympathy will lose their cases when they have weak legal claims. That’s what the rule of law means.

e. Democratic leader Chuck Schumer, of course, doesn’t get it (or at least pretends not to). He complains that Gorsuch “sort of expresses sympathetic words in many of these cases, but then his decision is coldly—he would say pragmatic, we would say coldly—on the side of the big interests.”

No, Senator Schumer, Gorsuch would not “say pragmatic.” Gorsuch soundly rejects the notion that judges have broad discretion to read statutes in furtherance of their own assessments of what is “pragmatic.” Gorsuch would instead say that he was striving to apply the law dispassionately in these cases. And any fair reading of them would support his account.

2. Democrats’ second charge can be readily disposed of. No one who knows Judge Gorsuch or who has examined his record with care has any basis for concern that he will exercise proper judicial independence, whether from President Trump or from any other political considerations. That’s obviously part of the reason why the ABA’s judicial-evaluations committee gave Gorsuch its “strongest affirmative endorsement.”

Democrats, I gather, will try to fault Gorsuch for not speaking out against various things that President Trump has said or done. But the idea that it’s incumbent on, or proper for, a Supreme Court nominee—who is also a sitting federal judge—to inject himself into political disputes is a very odd one.

In short, this second line of attack, like the first, will operate primarily to show that Democrats don’t understand the proper role of a judge.

(By the way, my posts on the Gorsuch nomination are being compiled on this single page, for easy searching.)


Senator Schumer Attacks Rule of Law

March 15, 2017

Senate Democratic leader Chuck Schumer’s press conference today (ongoing as I write this) with supposed victims of Judge Gorsuch’s principled judicial decisionmaking is a stupid stunt that highlights that so many on the Left have a completely results-oriented approach to judging.

Liberal Harvard law professor Noah Feldman soundly denounces this whole line of attack as a “truly terrible idea” that contradicts the “whole point of a rule-of-law system.” As Feldman explains, the rule of law means that judges are “to decide cases under the law, not based on preferences for individuals.”

Schumer himself used to understand this (or at least to pretend to). Indeed, his opening statement at Justice Sonia Sotomayor’s confirmation hearing (see pages 24-25 of transcript) is replete with praise for her “hew[ing] carefully to the text of statutes, even when doing so results in rulings that go against sympathetic litigants”:

[S]he has ruled for the government in 83 percent of immigration cases against the immigration plaintiff, she has ruled for the government in 92 percent of criminal cases, she has denied race claims in 83 percent of cases and has split evenly on employment cases between employer and employee.…

In a case involving a New York police officer who made white supremacist remarks, she upheld his right to make them.

In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it.

So why is Schumer abandoning the rule of law in attacking the Gorsuch nomination?


PFAW’s Feeble Attacks on Gorsuch

January 31, 2017

At the website of—euphemism alert!—People for the American Way, Elliot Mincberg attacks Supreme Court nominee Neil Gorsuch as “dangerous” and “far-right.” Let’s take a look at each of Mincberg’s charges and the feeble evidence he tries to muster in support of them:

1. Mincberg alleges:

As a judge, [Gorsuch] has consistently ruled against workers and in favor of big corporations. For example, he argued in dissent that the court did not even protect  the in-house counsel of a state fire marshal from sex discrimination.

Let’s start with the two opinions Mincberg complains about.

Gorsuch did indeed dissent (in Compass Environmental, Inc. v. Occupational Safety & Health Review Comm’n) from a panel ruling upholding a fine imposed against a company for allegedly failing to adequately train a worker who was electrocuted. He did so, as he explains, on the very narrow ground that the Secretary of Labor failed to present any evidence to satisfy her burden of showing that industry norms would have required more training than the worker received. As he points out, the administrative-law judge in the matter “dismissed the citation against [the employer] for exactly this reason.”

The second opinion that Mincberg objects to (in Weeks v. Kansas) was a short unanimous opinion that involved a straightforward application of circuit precedent. The case did not involve sex discrimination but rather an employer’s alleged unlawful retaliation against an in-house lawyer for her advice concerning two other employees’ claims of unlawful discrimination. Under Tenth Circuit precedent, an in-house lawyer does not engage in “protected opposition to discrimination” when she merely provides legal advice to the employer. Gorsuch’s opinion affirmed the district-court ruling of Judge Carlos Murguia, a Clinton appointee.

So Mincberg’s two examples do not remotely support any broader proposition that Gorsuch “has consistently ruled against workers and in favor of big corporations.” One could as easily cite cases in which he has ruled for workers and against big corporations and (as Weeks involved) government entities. See,  e.g.,  Strickland v. United Parcel Service (reinstating Family and Medical Leave Act retaliation claim and Title VII discrimination claim);  Orr v. City of Albuquerque (reversing grant of summary judgment to city on pregnancy-discrimination claim by female police officers). In short, the only real constant is that Gorsuch “has consistently ruled” as he has understood the law and facts to require.

2. Mincberg alleges that Gorsuch “has harmed women’s reproductive rights through joining opinions that both  non-profits  can refuse to provide contraceptive coverage to women under the ACA.” What Gorsuch did was correctly rule that the federal Religious Freedom Restoration Act affords religious-liberty protections to closely held for-profit corporations and religious nonprofits. As the Supreme Court made clear in its ruling in Burwell v. Hobby Lobby, there are plenty of other ways that the Obama administration could provide coverage of contraceptives (including those with potential abortifacient effects) without dragooning those who have sincere religious objections. So Mincberg’s real complaint is with RFRA or with the Obama administration.

3. Mincberg complains that Gorsuch “argued in dissent that the Governor of Utah should be able to defund Planned Parenthood  there as a result of false [sic] videos purporting [sic] to show other Planned Parenthood affiliates negotiating the sale of fetal tissue.” What Mincberg neglects is that Gorsuch clearly got the narrow legal issue right.

In Planned Parenthood Ass’n of Utah v. Herbert, Gorsuch (joined by three colleagues) dissented from the Tenth Circuit’s denial of rehearing en banc of a divided panel decision that granted Planned Parenthood’s Utah affiliate (PPAU) a preliminary injunction against Utah governor Gary Herbert’s directive to state agencies “to cease acting as an intermediary for pass-through federal funds” to PPAU. Herbert issued his directive following the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts. The Tenth Circuit panel reversed the district court’s denial of preliminary injunctive relief.

The pivotal legal issue on which “everyone agreed,” as Gorsuch explains, was whether Herbert “discontinued funding because of [PPAU’s] affiliation with those accused of illegally selling fetal tissue—as he said he did” (in which case “the parties agreed that no constitutional violation had taken place”) or whether he instead “discontinued funding for a different and secret reason—in retaliation for the group’s advocacy of lawful abortions (in which case “both sides accepted that a constitutional violation had occurred”).

Gorsuch powerfully argues that the panel, in reversing the district court, departed from circuit practice on the standard of review and the burden of proof: “Rather than afford the district court’s factual finding about the Governor’s intentions the deference it was due, the panel offered its own independent assessment of the record.” Further, the panel “relaxed PPAU’s burden of proof and even seemed to reverse it.” Although Herbert has long opposed abortion and has held office since 2009, he “had taken no action against PPAU until shortly after the release of the videos in 2015” and had in fact “repeatedly granted or extended funding to PPAU for numerous programs since taking office.” So it was bizarre that the panel majority would “dismiss the Governor’s evidence suggesting an obvious and temporally proximate potential cause [of the Governor’s directive] in favor of PPAU’s evidence suggesting a temporally remote potential cause that was itself contradicted by intervening evidence.”

4. Mincberg argues that Gorsuch, back when he was in private practice, “tried to restrict or eliminate one of the most effective legal tools against corporate securities fraud, class actions against corporations.”

What Mincberg is apparently objecting to is that Gorsuch wrote an op-ed about, and an amicus brief on behalf of the Chamber of Commerce in, the Supreme Court case of Dura Pharmaceuticals v. Broudo. Set aside that Mincberg is faulting Gorsuch for representing his client. Gorsuch’s amicus brief highlighted the economic toll of meritless class actions and asked the Supreme Court to rule that plaintiffs under the securities laws had to allege and prove the traditional elements of causation and loss. In a unanimous opinion by Justice Breyer, the Court adopted the position that Gorsuch and others (including the SEC) advocated. So Mincberg is exposing himself as the extremist here.

5. Mincberg charges that Gorsuch “has gone even further to the right than elimination  of the so-called Chevron doctrine, under which courts defer to administrative agency interpretations of ambiguous statutes, which has been extremely important on environmental, job safety, and other issues.”

But as I’ve explained, the Chevron rule of judicial deference to administrative agencies has no inherent ideological valence. How it operates in practice depends on who is running the agencies.

Indeed, Justice Stevens wrote the opinion for a unanimous Court in Chevron, and Justice Scalia, contrary to what Mincberg suggests, was one of the most ardent advocates of Chevron (though he might have been reconsidering his position in recent years). Academic supporters and critics transcend the usual ideological lines. See, e.g., Jack Beermann, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled,” 42 Connecticut Law Review (2010).

Is Mincberg really sure that he’d prefer that the Trump administration, rather than the courts, determine the meaning of ambiguous laws on environmental protection and job safety? In any event, determining whether Chevron deference is valid requires engaging Gorsuch’s separation-of-powers arguments against it.

* * *

In sum, Mincberg’s bill of particulars against Gorsuch is a joke.


American Bridge: Too Stupid for Words

February 1, 2017

One of David Brock’s money-sucking tentacles, a super PAC called American Bridge 21st Century, has issued a tedious 77-page copy-and-paste manifesto against Supreme Court nominee Neil Gorsuch. The screed’s title proclaims Neil Gorsuch “Too Extreme for the Supreme Court,” but a quick initial review of its contents suffices to show that American Bridge, when it tries to engage in legal analysis, is simply “Too Stupid to Be Taken Seriously.”

As I race from meeting to media appearance, permit me just a couple of quick examples:

1. In labeling Gorsuch a “threat to privacy” (p. 14), American Bridge writes:

Gorsuch also wrote a dissenting opinion in the United States v. Carlos [sic] case, in which he argued that police ignoring a “no trespassing” sign did not violate the 4th amendment.

American Bridge gets things backwards. Gorsuch did indeed dissent in United States v. Carloss. But it was the majority opinion in that case that denied the defendant’s motion to suppress evidence that the police discovered after going on the homeowner’s property. Gorsuch argued in a lengthy dissent that by posting “No Trespassing” signs all over her property, the homeowner had refused to consent to the police entering her property.

2. American Bridge faults Gorsuch for his opinion in Wilson v. City of Lafayette in which he “claimed that all police officers had immunity unless they were ‘plainly incompetent’ or knowingly violating the law” (p. 10). American Bridge manages not to notice that Gorsuch’s “claim” is in fact a direct quotation from the governing Supreme Court authority, Malley v. Briggs (1986). Here’s what Gorsuch wrote:

We sympathize with the Wilsons over their terrible loss. But the Supreme Court has directed the lower federal courts to apply qualified immunity broadly, to protect from civil liability for damages all officers except “the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), in order that officers might not be unduly “inhibit[ed] . . . in performing their official duties,” Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001.

The Supreme Court was unanimous on that proposition in Malley. Among the oh-so-extreme justices who joined Justice White’s majority opinion: Brennan, Marshall, Blackmun, Stevens, and O’Connor.


American Bridge: Too Stupid for Words—Part 2

February 2, 2017

A follow-up to my post from yesterday.

Skimming through the back half of American Bridge 21st Century’s incompetent attack on Supreme Court nominee Neil Gorsuch, I’ll highlight a few more blatant distortions and bloopers that signal the dismal quality of the work product. (I also note with amusement that American Bridge repeats on page 56 the same gaffes from pages 10 and 14 that I discussed yesterday.)

1. Under the heading “Concussions” (p. 66), American Bridge writes:

Neil Gorsuch Affirmed The $1 Billion NFL Concussion Settlement. According to Star-News, “Last year, he joined two 3rd Circuit colleagues in affirming the $1 billion settlement of NFL concussion claims, rejecting complaints that men with depression and mood disorders were left out of the deal.” [Star-News, 1/25/17]

Oops. Really bad copy-and-paste job, guys. The opinion that American Bridge is discussing is one that Third Circuit judge Thomas Hardiman joined. (Here’s the news article it refers to.) Gorsuch had nothing to do with it. That reference to “two 3rd Circuit colleagues” might have clued you in. Speaking of concussions ….

2. In a heading (p. 58), American Bridge asserts (in bold):

Gorsuch Ruled that A Man Who Shot Two People But Only Fired His Gun Once Could Be Tried For Two Counts Of Using A Firearm To Commit A Violent Crime.

I’m not entirely clear why American Bridge, given its antipathy to gun ownership, would object to such a ruling. Indeed, the initial Tenth Circuit panel opinion, authored by Obama appointee Scott Matheson, reached just that result.

But if American Bridge could read and understand the newspaper article it quotes, it would discover that its account of Gorsuch’s en banc majority opinion in United States v. Rentz is entirely backwards. Gorsuch—joined by, among others, Clinton appointee Carlos Lucero and Obama appointees Robert Bacharach and Nancy Moritz—“ruled that the second charge should have been dismissed” because the statute was unclear and the rule of lenity operated to the benefit of the defendant.

3. American Bridge spends a full page (pp. 56-57; see also p. 10) castigating Gorsuch for Hawker v. Sandy City Corp., which held that a police officer did not use excessive force in violation of the Fourth Amendment when he used a twist lock to constrain a combative nine-year-old. In a heading, American Bridge attributes to a “Gorsuch Opinion” the proposition that “‘the disrespectful, obdurate, and combative behavior of that nine-year-old child’ was ‘equally regrettable’ to the officer’s actions.”

But what only the careful reader will discern is that Gorsuch didn’t write any opinion in the case and that Clinton appointee Carlos F. Lucero concurred in the panel’s disposition (even as he wrote separately to express his disagreement with circuit precedent). American Bridge’s strange clipping of the passage from Judge Terrence O’Brien’s opinion (which Gorsuch joined) seems designed to obscure that O’Brien forthrightly stated, “It is regrettable that a police officer feels a need to resort to physical force, handcuffs, and arrest in order to gain control of and reason with a nine-year-old child.”

***

The one conclusion that you can fairly draw from the American Bridge report is that if David Brock’s gullible donors were paying for serious research, they’ve been ripped off.


#NBCFakeNews on Gorsuch

February 2, 2017

In this NBC News article from yesterday, reporter Corky Siemaszko claims that Neil Gorsuch, as an undergrad at Columbia, “opposed military recruiting on campus precisely because it discriminated against gays and lesbians.” Siemaszko purports to quote from an op-ed by Gorsuch in the school paper.

Siemaszko seems not to have noticed that Gorsuch’s supposed op-ed had a dramatic change of voice and a glaring grammatical glitch right at the carryover from one page to the next:

Truth is: Columbia does have a moral responsibility. It has a moral responsibility to overcome the tyrannical atmosphere of “ideas” that has so dominated life on Morningside for the last 20 years; it has a responsibility to make the political, philosophical, and ethical experience here as diverse and varied as the cultural and ethnic experience. The image of Columbia as a haven of post-radicals, holed up in their River and Jay cubicles poring over plans for the next RealityFest must give way to a broader, more inclusive ethic. Diversity does not automatically translate into non-conformity. Diversity means, [continuation to next page] workers. Should an institution that professes Freedom and Democracy take advantage of such a set-up?

Columbia’s tactics in dealing with its clerical workers demonstrated the same sort of hypocrisy. Rather than allow its workers their legal right to organize, Columbia pulled the Big Book of Union Busting down from the shelf and went to work. It took a ruling by the National Labor Relations Board and the threat of a strike to get the administration to bargain in good faith. Were this a truly democratic environment, heavy-handed pressure tactics by either side would be unnecessary….

The passages that Siemaszko attributes to Gorsuch are all on the carryover page.

As you might guess, and as the paper acknowledged the next day, the “continuations of opinion columns by Neil Gorsuch and Jason Myers were mislabeled.” In other words, the passages that Siemaszko attributes to Gorsuch were part of Myers’s op-ed.

Siemaszko was notified of his error more than nine hours ago but still hasn’t corrected it. But, hey, he’s busy tweeting on other things.

Update (12:55 pm): Siemaszko has now changed his story (while still leaving weird remnants of the original) without acknowledging his error. The link to his article yesterday now leads to a very different article dated today.

Further update (1:05 pm): The article has been further revised to include a rather roundabout acknowledgment of error:

The campus newspaper ran a correction on Feb. 26, 1987.

NBC News was made aware of the correction after an earlier story about Gorsuch and his campus writings was published.

Gee, who wrote and published that “earlier story”?


#FakeNews on Gorsuch on Imaginary ‘Fascism Forever’ Club

February 2, 2017

The Daily Mail and the New York Post (parroting the Daily Mail) are trumpeting a ridiculous claim that Neil Gorsuch, while he was a high-school student, founded a student club named “Fascism Forever.” The supposed evidence for their claim is the blurb on him in his high-school yearbook.

Earth to newpaper reporters: High-school yearbook editors sometimes have a sophomoric sense of humor.

I am reliably informed that no such club ever existed and that there was instead an inside joke among friends in the senior class that parodied political debates happening at the school. A contemporary of Gorsuch’s at the school also tells me that yearbook editors added stuff to student blurbs without their permission.

All of this also leads me to doubt the yearbook’s claim that Gorsuch was a “Believer in The World According to Ward.”

Update: Gorsuch’s high school confirms what should have been obvious to everyone: that no such club ever existed and that the yearbook blurb was tongue-in-cheek.


ACLU’s Disabled Review of Gorsuch

February 7, 2017

Well, this is curious.

On the ACLU’s website, Claudia Center has a piece claiming, as its title blares, that “Supreme Court Nominee Neil Gorsuch Has a Troubling History When Ruling on Disability Rights Cases.” Center invites “attention to [Judge Gorsuch’s] decisions on disability rights” and says that two of his cases “stand out.”

Oddly, though, Center doesn’t provide links to either of the two cases that she says she wants to draw attention to (even as she includes several other links). Gee, why might that be?

Perhaps because anyone looking at Gorsuch’s two supposedly “troubling” opinions would readily discover that each was unanimous and that each was joined by a very liberal Clinton appointee (Carlos Lucero in one, Mary Beck Briscoe in the other). Perhaps because anyone reading those opinions would discover that Center’s account of them is not trustworthy.

Let’s first consider Gorsuch’s opinion in Hwang v. Kansas State University (joined by Lucero).

The plaintiff in the case, Grace Hwang, was an assistant professor at Kansas State. Upon learning before the fall term that she needed treatment for cancer, she sought, and Kansas State gave her, a six-month paid leave of absence. As that six-month period was expiring, she sought additional leave through the entire spring semester. Kansas State refused, and Hwang sued under the federal Rehabilitation Act, claiming that she had been discriminated against on the basis of disability.

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, Hwang had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions. (By contrast, Gorsuch spells out, “an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job,” and “allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation.”)

No one who reads Center’s account of the case would understand any of this. Center would have us believe that Hwang asked merely “for further short leave” because of a “flu epidemic” on campus. But Gorsuch’s opinion makes clear that Hwang wanted the entire spring term off and that she was complaining that she wasn’t being treated the same as those university employees who were eligible for “sabbaticals lasting up to a year.”

The second case that Center criticizes is Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. (joined by Briscoe).

Gorsuch’s opinion ruled that parents who withdrew their autistic son, Luke, from a public school in order to place him in a private residential program were not entitled under the Individuals with Disabilities Education Act to recover from the school district reimbursement of their tuition expenses for the residential program. Specifically, Gorsuch’s opinion determined that the public school had been providing Luke a “free and appropriate public education” (“FAPE”) that satisfied the statute.

Although you wouldn’t know it from Center’s account, Gorsuch’s opinion steadfastly sought to follow the Supreme Court’s 1982 precedent of Board of Education v. Rowley, citing it some twenty times. Here’s one excerpt (some citations and footnotes omitted):

How do we know when a school district has or has not provided a disabled student with a FAPE? To be sure, the term is hardly self-defining. Fortunately, however, the statute and Supreme Court afford some additional direction, indicating that we must ask, more specifically, whether Luke’s December 2003 IEP [“individualized education program”] was “reasonably calculated to enable [him] to receive educational benefits,” Bd. of Educ. v. Rowley, 456 U.S. 176, 207 (1982). If the IEP was so calculated, the school district can be said to have provided a FAPE; if not, then not.

The Supreme Court has further explained that this standard is not an onerous one. “Congress did not impose upon the States any greater substantive educational standard than would be necessary to make … access meaningful․ [T]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. So, for example, the Court found no support in the text or history of the Act for the proposition that Congress sought to guarantee educational services sufficient to “maximize each child’s potential.” Id. at 198. Instead, we are told, Congress sought only to require a “‘basic floor of opportunity,’” id. at 200, aimed at providing individualized services sufficient to provide every eligible child with “some educational benefit,” id. (emphasis added). We are also reminded that the “primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” Id. at 207. From this direction, we have concluded that the educational benefit mandated by IDEA must merely be “more than de minimis.”

As Center notes, the question of what counts as a “free and appropriate public education” is pending before the Supreme Court, and it is certainly possible that the Court will revisit what Rowley means. But when Center complains about the allegedly “narrow and outdated standard used by Judge Gorsuch,” she obscures the critical point that Gorsuch (and Briscoe) reasonably drew that standard from the Supreme Court’s decision in Rowley.

My limited point here is not to argue that Gorsuch’s opinion was clearly correct. (That would take a lot more work, both for me and for you.) Rather, it is to highlight that an opinion that strives to hew to longstanding Supreme Court precedent and that is joined by a liberal Clinton appointee is a remarkably weak reed on which to base a claim that Gorsuch’s record on disability cases is “troubling.” (Nancy Pelosi has also tried to use this case against Gorsuch; David Freddoso has critiqued her folly.)


Turow’s Reversible Errors—Part 1

February 13, 2017

In a piece for Vanity Fair titled “How the Democrats Can Stop Neil Gorsuch: And why they absolutely must,” lawyer-turned-novelist Scott Turow amply demonstrates that he’s more suited to fiction-writing than to legal analysis.

The author of Reversible Errors, Turow commits quite a few of his own:

1. Turow asserts that Supreme Court nominee Neil Gorsuch “is filling a seat that by any objective reading of the Constitution belongs to Merrick Garland.” He claims that Republicans, in declining to take any action on President Obama’s nomination of Garland, “read … out of the Constitution” the Appointments Clause set forth in Article II, section 2. In particular, he asserts that they “refused to fulfill [their] constitutional mandate” when they “refused to allow a vote on whether or not to confirm him.”

Far from being dictated “by any objective reading of the Constitution,” Turow’s gross misreading of the Appointments Clause is so “silly” and “obviously fatuous” that no reasonably well-informed person could intelligently advance it in good faith. As I have explained repeatedly, the Appointments Clause restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything.

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So Turow’s claim that Republicans had a “constitutional mandate” to “allow a vote on whether or not to confirm” Garland has zero basis in the Constitution’s text and contradicts the Senate’s longstanding practice on nominations subject to the Appointments Clause.

But if you’re disinclined to think through this yourself and don’t want to take my word for it, how about (among countless others) liberal law professor, and Supreme Court confirmation expert, Michael Gerhardt or President Obama’s former White House counsel Kathryn Ruemmler?

2. In support of his assertion that Gorsuch is “extremely conservative,” Turow cites two studies. One, in the best tradition of modern junk social science, ranked the candidates on President Trump’s Supreme Court list by this “tried-and-true [insert hilarious laughter] approach”:

• If a judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator.

• If both senators are from the president’s party, the judge is assigned the average ideology of the two senators.

• If neither home-state senator is from the president’s party, the judge receives the ideological score of the appointing president.

So, you see, don’t bother actually trying to take a serious look at Judge Gorsuch’s judicial record over ten years. You can just assign him the “ideology” of Wayne Allard, who was the Republican senator from Colorado when George W. Bush appointed Gorsuch.

The second “study” that Turow finds so probative looks only to the “political donations made by federal judges before taking their seats.” Such donations may surely offer some insight (even if imperfect) into a judge’s preferences for political candidates, but it’s difficult to see why anyone would look to them to measure a judge’s judicial record.

3. Turow complains of the “rank partisanship” of the National Review essay that Gorsuch wrote in 2005 lamenting the Left’s “overweening addiction to the courtroom as the place to debate social policy.” Never mind that Gorsuch was expressly endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal.” What Turow finds “infuriating” is that Gorsuch failed to “recognize that conservatives have been equally, if not more guilty[,] of the same thing”—and Turow cites the “conservative effort to eradicate gun control, to allow for unlimited campaign spending, [and] to overturn Obamacare” as examples.

I’ll pass over for now the merits of Turow’s examples and limit myself to the observation that I don’t see how he can fault Gorsuch for writing an essay in 2005 that fails to address or distinguish conservative litigation efforts that occurred (or at least became prominent) only years later.

4. Turow imagines that Gorsuch’s “supposed sympathy to [sic] legislative judgments” is belied by his Tenth Circuit vote in the Hobby Lobby case. But Turow gets Hobby Lobby wrong.

Turow says that Gorsuch “struck down on grounds of freedom of religion those provisions of the Affordable Care Act that obligated employers to pay for their employees’ contraceptive care.” The trusting reader would think that Gorsuch ruled that a provision in Obamacare violated the First Amendment’s Free Exercise guarantee. But the HHS contraceptive mandate was an Obama administration regulation, not a statutory provision. And Gorsuch and his Tenth Circuit colleagues ruled (as the Supreme Court majority did) on the basis of the federal Religious Freedom Restoration Act, not the First Amendment. Further, they did not strike down the regulation; they held merely that RFRA meant that it could not be applied to Hobby Lobby.

In short, contrary to Turow’s confusion, Hobby Lobby illustrates Gorsuch’s respect for “legislative judgments.”

More in Part 2.


Turow’s Reversible Errors—Part 2

February 13, 2017

Continuing with my critique of Scott Turow’s Vanity Fair attack on Supreme Court nominee Neil Gorsuch (and numbering my points serially from my Part 1 post):

5. Turow scripts a set of questions for Senate Democrats to ask at Gorsuch’s hearing that will—get this!—“force[] [Gorsuch] to concede [Merrick] Garland’s qualifications” for a Supreme Court seat. E.g.:

In your view are you a better judge than Merrick Garland?

Do you have the same length of service as Judge Garland on the appellate court? (No)

Have you, like Judge Garland, served as the chief judge of the Circuit on which you sit? (No)

He even “expect[s]” that Republicans would “try to rule these questions about Garland somehow out of order” and that there might be a dramatic confrontation over them that should cause Senate Democrats to “get up and leave and boycott the confirmation process thereafter.”

All that Turow is showing is that he understands next to nothing about the confirmation process.

Earth to Turow: The very sound Republican strategy on the Scalia vacancy was established on the very day of Scalia’s death (exactly one year ago today, as it happens). It had nothing to do with Garland (even though it probably helped win him the nomination), and Republicans never disparaged Garland’s qualifications. As someone who has repeatedly stated my own admiration for Judge Garland, I am confident that it would not take any tricky cross-examination to get Gorsuch to avow the same. Nor would Republicans have the least concern about your oh-so-clever questions.

6. Turow also imagines that Gorsuch has “boxed himself in” to being questioned about his personal beliefs since “those beliefs, according to his own catechism, would not control how he would rule on the cases before him.”

So in Turow’s view, a Supreme Court nominee who says that his personal views will influence his judging can’t be asked about those personal views but a nominee who says that his personal views won’t influence his judging can be. On the basic measure of relevance, I can’t see how that distinction makes any sense.

In any event, Turow seems not to realize that all or nearly all Supreme Court nominees have put themselves in the same “box” that Turow imagines Gorsuch to be in. To take but one example, Elena Kagan stated at her hearing that “judging is about … how the law applies to [the] case, not how your own personal views, not how your own political views might suggest, you know, anything about the case.”

Moreover, insofar as the traditional practice of a nominee’s refusal to discuss personal views is justified, it rests heavily on the public interest in the appearance of judicial impartiality—an interest that would be disserved by a nominee’s expressing his personal views on contested issues, irrespective whether he says those view are or are not relevant to his judging.

7. Turow wants Democrats to use all possible weapons, including resorting to the filibuster (even if that means that Republicans will eliminate the filibuster). But, wait. I thought (see point 1 of my Part 1 post) that Turow insists that the Senate has a “constitutional mandate” to “allow a vote on whether or not to confirm” a Supreme Court nominee—​in other words, not to use the filibuster to prevent an up-or-down vote on the nomination.

Yes, Turow’s constitutional argument is insipid, but the fact that he would apply it (in the same essay, no less!) to the Garland nomination but not to the Gorsuch nomination shows what a hopeless hack he is.

8. Turow posits that Gorsuch might lead the Supreme Court not merely to overturn Roe v. Wade (and restore abortion policy to the democratic processes) but to go much further to establish “a constitutional right to life” that would amount to a “national ban on abortion.”

You see, Gorsuch wrote a dissertation and book that expressed his moral opposition to assisted suicide and “went on to suggest the possibility of a constitutionally enforceable right to life” against assisted-suicide laws. Plus, “assisted suicide is an obvious proxy for reproductive choice.” So we could be just around the corner from having a Supreme Court majority embrace a proposition that no justice has ever endorsed—and that Justice Scalia specifically rejected.


Common Cause’s Chicken Little

February 15, 2017

In this US News & World Report piece, Karen Hobert Flynn, president of Common Cause, does her best Chicken Little imitation.

Flynn squawks that Supreme Court nominee Neil Gorsuch “stands to further entrench big-money politics as the law of the land and threaten our democracy.” But halfway through her piece, she acknowledges that his “record on money in politics is sparse.”

The only specific claim from Gorsuch’s judicial record that Flynn tries to muster is that his “troubling concurring opinion in Riddle v. Hickenlooper suggests he is open to a higher level of protection to a donor’s right to make political contributions than to every American’s right to vote.” But Gorsuch’s concurring opinion in Riddle v. Hickenlooper isn’t “troubling” at all and suggests no such thing.

The legal question in the case was whether the Constitution allowed Colorado to cap individual contributions to a write-in candidate for the state house of representatives at a level ($200) that was lower than the cap ($400) for contributions to the Republican and Democratic nominees who qualified for the general-election ballot. In a unanimous opinion for the panel, Judge Robert Bacharach, an Obama appointee, ruled that the disparity violated the Equal Protection Clause.

In addition to joining Bacharach’s opinion, Gorsuch penned a brief concurring opinion. Among other things, Gorsuch explained, in response to the minor-party contributors claim that strict scrutiny should apply to the Colorado law, that “we have no controlling guidance on the question [of the level of scrutiny] from the Supreme Court” and that “in what guidance we do have lie some conflicting cues.”

So far as I can tell, the three paragraphs in which Gorsuch presented these “conflicting cues” are the sole basis for Flynn’s characterization of Gorsuch’s opinion as “troubling.” But the fairminded reader will readily discover that Gorsuch was simply highlighting the confusion he saw in the Supreme Court’s then-existing guidance for the lower courts and was not saying anything about how he would approach the issue as a justice (much less saying anything about how the constitutional protection of a “donor’s right to make political contributions” compares to the constitutional protection of “every American’s right to vote”).

Gorsuch also observed in his concurrence that it was “clear” to him that, “with a little effort, Colorado could have achieved its stated policy objectives (and might still) without offending the national charter.” He explained that Colorado could follow the federal model of regulating campaign contributions.

So there is zero basis for Flynn to infer from Gorsuch’s opinion that he would vote “to declare campaign contribution limits unconstitutional.”


Left-Wing Letter Against Gorsuch—Part 1

February 15, 2017

The Leadership Conference on Civil and Human Rights and a collection of other left-wing self-styled “civil and human rights organizations” have sent the Senate their all-too-predictable letter opposing the confirmation of Supreme Court nominee Neil Gorsuch. Their letter is replete with boilerplate blather, but it woefully fails to support their claims.

The lefty groups (which I will refer to collectively as LCCHR) organize their claims about Judge Gorsuch’s record in ten sections. I will address each of these in turn. (I will pass over, at least for now, their last two sections, which complain about some things that happened at the Department of Justice while Gorsuch served in the Associate Attorney General’s office but which simply say that he “should be questioned” to see what role, if any, he had in such matters.)

“Discrimination Claims”: LCCHR claims that Gorsuch’s 2005 National Review article manifested a “hostility to the use of courts by discrimination victims to enforce their rights under the Constitution” (emphasis added). But Gorsuch showed no such hostility. On the contrary, he was simply endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal,” that American liberals excessively rely on the courts to impose their social agenda. Gorsuch made clear that he was not applying that critique to the “constitutional lawsuits [that] have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list.” And, by its own terms, his critique plainly also did not apply to lawsuits to enforce established rights under the Constitution.

LCCHR cites two of Gorsuch’s opinions, but its accounts of both are grossly inadequate and misleading. In Strickland v. UPS, Gorsuch joined the parts of the panel opinion that held that the plaintiff was entitled to a new trial on her claim that she had been retaliated against for using her rights under the Family and Medical Leave Act. He dissented only from the panel’s ruling that she was also entitled to a new trial on her Title VII sex-discrimination claim, and he did so on the ground (not hinted at, much less disclosed, by LCCHR) that the record showed that the employer mistreated male employees “in very much the same manner” that he mistreated the plaintiff. In other words, the plaintiff offered no evidence that she was being discriminated against on the basis of sex.

The second opinion that LCCHR cites, Weeks v. Kansas, was a short unanimous opinion that involved a straightforward application of circuit precedent. The case did not involve sex discrimination but rather an employer’s alleged unlawful retaliation against an in-house lawyer for her advice concerning two other employees’ claims of unlawful discrimination. Under Tenth Circuit precedent, an in-house lawyer does not engage in “protected opposition to discrimination” when she merely provides legal advice to the employer. Gorsuch’s opinion affirmed the district-court ruling of Judge Carlos Murguia, a Clinton appointee.

“Workers’ Rights”: In Compass Environmental, Inc. v. Occupational Safety & Health Review Comm’n, Gorsuch dissented from a panel ruling upholding a fine imposed against a company for allegedly failing to adequately train a worker who was electrocuted. LCCHR claims that Gorsuch dissented “because he didn’t believe the employer was negligent” (as though he were making some sort of free-form assessment). But, as Gorsuch explains, he dissented on the very narrow ground that the Secretary of Labor failed to present any evidence to satisfy her burden, under Department regulations, of showing that industry norms would have required more training than the worker received. As he points out, the administrative-law judge in the matter “dismissed the citation against [the employer] for exactly this reason.”

LCCHR’s account of TransAm Trucking v. Administrative Review Board badly obscures the legal issue that was the basis for Gorsuch’s dissent. According to LCCHR, Gorsuch “said the [fired trucker] should have followed orders even at the risk of serious injury.” No. What Gorsuch said was that the trucker who “chose … to operate his vehicle in a manner he thought wise but his employer did not” (emphasis in original) could not claim the statutory whistleblower protection extended to those who refuse to operate a vehicle out of safety concerns. As he put it, the company’s decision to fire the trucker under the circumstances may not have been “a wise or kind one.” But “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

LCCHR doesn’t even bother to try to explain, much less intelligently criticize, Gorsuch’s dissent in NLRB v. Community Health Services. Gorsuch was not objecting to the employees’ eligibility for back pay where their hours had been unlawfully reduced. He was objecting, rather, to the NLRB’s adoption of a “new rule” governing the calculation of that back pay.

“Immigration”: In its discussion of the Tenth Circuit’s en banc ruling in 2007 in Zamora v. Elite Logistics, Inc., LCCHR again does a remarkable job of obscuring what the case was about. When Elite Logistics hired Ramon Zamora, he was a Mexican citizen and a lawful permanent resident of the United States. When Elite later discovered that he was using the same social security number that another employee was using, it gave him ten days to provide documents establishing that he had a right to work in the United States. When he failed to do so, Elite suspended him. When he later provided these documents, it reinstated him, but when he requested an apology, it fired him.

The Tenth Circuit divided evenly, seven to seven, on the question whether Elite was entitled to summary judgment on Zamora’s suspension claim; Gorsuch voted that it was. It ruled by a vote of nine to five, with Gorsuch in the majority, that Elite was entitled to summary judgment on Zamora’s firing claim.

The fact that Gorsuch was part of a seven-judge coalition on one question and a nine-judge coalition on the other defeats any claim that his positions in the case were somehow extreme. Moreover, LCCHR’s effort to draw broader lessons from this case about Gorsuch’s approach to immigration-law issues and “immigration enforcement strategies” mistakes the discrete legal issues that the case presented.

It’s also very odd that LCCHR doesn’t discuss, or even acknowledge, here Gorsuch’s notable rulings in favor of illegal aliens in Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch. But I guess that those don’t fit the contrived narrative.


Left-Wing Letter Against Gorsuch—Part 2

February 16, 2017

Before continuing my section-by-section response to the LCCHR letter against Supreme Court nominee Neil Gorsuch, I’d just like to observe that one of the most galling aspects of the letter is its signatories’ purported opposition to “litmus tests.” Never mind its failure to distinguish between tests of judicial philosophy and tests of political ideology. The larger scandal is that the LCHHR letter is nothing more than a series of political litmus tests.

The letter rarely acknowledges, much less engages, Gorsuch’s legal reasoning and instead persistently objects (even if wild distortions are required to do so) to the results that he reaches. In its manifest contempt for legal reasoning, the letter thoroughly discredits every organization that has signed it.

Back to the letter’s specific claims:

“Women’s Health”: It’s no surprise that LCCHR goes way off the deep end here.

Of the Tenth Circuit’s decision in Hobby Lobby Stores v. Sebelius, LCCHR says that Gorsuch “signed on to an opinion allowing certain for-profit employers to refuse to comply with the birth control benefit in the Affordable Care Act.” It’s wrong that the HHS contraceptive mandate was set forth in the Obamacare statute. (It was imposed by regulation.) But more importantly, it omits that Gorsuch and the Tenth Circuit majority were applying the federal Religious Freedom Restoration Act; that the Supreme Court affirmed their judgment and reasoning; and that only two justices (Ginsburg and Sotomayor) adopted the (clearly wrong) position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. LCCHR’s claim that Gorsuch’s legal reading enables employers “to block employees’ insurance coverage of birth control” also misses the elementary point that the Supreme Court and the Tenth Circuit, faithfully applying the RFRA test, recognized that the government had ways of providing such access that didn’t dragoon religious objectors.​

LCCHR contends that in Little Sisters of the Poor v. Burwell Gorsuch “joined a dissent that argued that the simple act of filling out an opt-out from constitutes a substantial burden on religious exercise.” Wrong. What the dissent argued, correctly, is that subjecting someone to massive fines for refusing to execute a document in violation of her religious beliefs imposes a substantial burden on her religious exercise:

When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

LCCHR complains that in Planned Parenthood Ass’n of Utah v. Herbert Gorsuch “dissented from the majority’s decision to keep in place a preliminary injunction that stopped the state of Utah from blocking access to health care and education for thousands of Planned Parenthood’s patients.” But (as I explain more fully in point 3 here), the case involved discontinuing taxpayer funding of Planned Parenthood, not “blocking access to health care and education”; the district court had denied Planned Parenthood’s request for a preliminary injunction, only to be overturned by a Tenth Circuit panel; and the narrow legal objections that Gorsuch raised were over the panel’s departure from circuit practice on the standard of review and burden of proof.

“LGBT Rights”: LCCHR repeats its false claim that Gorsuch, in a 2005 National Review article, “expressed disdain for those seeking to use the courts to enforce their rights under the law.” (See my Part 1 post, section on “Discrimination Claims.”) It further falsely claims that Gorsuch “specifically criticized LGBT Americans who have relied on federal courts in their quest for equality.” No, Gorsuch cited “gay marriage” as an example of the “overweening addiction” of “American liberals” to “the courtroom as the place to debate social policy.”

LCCHR also charges that the “rationale [Gorsuch] employed in the Hobby Lobby case—a license to discriminate for private corporations—has also been used by several states to justify discrimination against LGBT Americans.” But Gorsuch didn’t “employ” a “rationale” in Hobby Lobby, nor did he confer “a license to discriminate.” He enforced the religious-liberty rights that Congress recognized in RFRA. It would seem that it’s LCCHR that is guilty of “express[ing] disdain for those seeking to use the courts to enforce their rights under law” as well as for those seeking to have their religious-liberty rights protected by state legislation.

LCCHR complains that in Druley v. Patton Gorsuch “voted to reject a claim by a transgender woman [prisoner] who alleged that her constitutional rights were violated when she was denied medically necessary hormone treatment and the right to wear feminine clothing.” But the unanimous opinion that Gorsuch joined straightforwardly relied on three circuit precedents (each of which had at least two Democratic appointees on the unanimous three-member panel) and on the district court’s determination that the hormone treatment was not medically necessary.

“Police Misconduct”: LCCHR complains of a single ruling by Judge Gorsuch, in Wilson v. City of Lafayette, but fails to note that Obama appointee Scott M. Matheson Jr. joined Gorsuch’s opinion in its entirety. LCCHR also gets the basic holding of the case wrong. Gorsuch did not conclude that the officer’s use of force “was reasonable because the young man was fleeing arrest.” Rather, applying the long-established test for qualified immunity, he concluded that a person who is actively resisting arrest had no “clearly established right” not to be tased.


Left-Wing Letter Against Gorsuch—Part 3

February 16, 2017

Okay, let me complete my wade (see Part 1 and Part 2 posts) through the sludge of the LCCHR letter against Supreme Court nominee Neil Gorsuch:

“Students with Disabilities”: LCCHR complains of three rulings by Gorsuch involving the Individuals with Disabilities Education Act.

I’ve already extensively addressed Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. in the second half of this blog post, so I’ll just highlight here that his opinion steadfastly sought to follow the Supreme Court’s 1982 ruling in Board of Education v. Rowley and succeeded so well in doing so that Judge Mary Beck Briscoe, a very liberal Clinton appointee, joined his opinion in full.

LCCHR faults Gorsuch for supposedly holding in Garcia v. Board of Education of Albuquerque Schools that “a student who left the school out of frustration with the school’s failure to follow the IDEA was entitled to no remedy.” But what Gorsuch held was that the district court did not abuse its broad discretion under IDEA in denying relief to the student. In part that was because the student already possessed the same right (to provision of a “free and appropriate public education”) that she sought to have imposed as a remedy. In part it was because the student, with her “significant record of disciplinary problems and truancy,” had “demonstrated a clear commitment to avoid school and [to] disregard the educational opportunities available to” her. (LCCHR’s assertion that the student “left the school out of frustration with the school’s failure to follow the IDEA” is a fabrication.) Once again, Briscoe joined Gorsuch’s opinion in full.

The third ruling that LCCHR complains about is A.F. v. Española Public Schools. The case presents a complicated statutory question whether a student who has settled, and had dismissed with prejudice, an IDEA complaint may pursue under other federal disabilities laws the same relief that she could have pursued under IDEA. It would take far too much time and space to present the competing views of Gorsuch’s majority opinion and the dissent (by Briscoe). I’ll limit myself to noting that the tie-breaking vote in favor of Gorsuch’s position was cast by Clinton appointee Michael R. Murphy.

“Corporate Bias”: LCCHR imagines that Gorsuch’s concurring opinion (in Gutierrez-Brizuela v. Lynch) calling into question the Chevron doctrine of judicial deference to administrative agencies reflects some sort of “corporate bias” on his part. But as I have explained, and as some folks on the Left fearing a Trump administration are coming to realize, the Chevron doctrine has no inherent ideological valence; how it operates in practice depends on who is running the agencies. Instead of recklessly impugning Gorsuch’s motives, defenders of Chevron should engage the separation-of-powers arguments that Gorsuch has made.

“Money in Politics”: LCCHR contends that Gorsuch’s concurring opinion in Riddle v. Hickenlooper “suggested courts should afford strict scrutiny … to political contribution limits.” But as I explained in this post, Gorsuch was simply highlighting the “conflicting clues” he saw in the Supreme Court guidance on the proper level of scrutiny. His approving statement about how the “federal government regulates campaign contributions” contradicts LCCHR’s silly assertion that he would be “extremely hostile to campaign finance reform measures and would essentially gut the ability of Congress and the states to set any reasonable limits on money in our elections.”

“Environmental Protection”: Beyond repeating its Chevron canard, LCCHR complains about two of Gorsuch’s cases.

LCCHR argues that Gorsuch’s dissent in United States v. Nichols “tried to revive an obscure legal doctrine that could strike down many significant environmental laws.” In case you’re wondering, that “obscure legal doctrine” that LCCHR doesn’t dare to identify is, as Gorsuch puts it, that “the prosecutor isn’t allowed to define the crimes he gets to enforce.” Or, if you prefer, that under the so-called nondelegation doctrine, the Constitution’s separation of powers places some limits on the legislative powers that Congress may delegate to executive-branch agencies, especially when criminal liability is involved.

LCCHR also complains that Gorsuch “concurred” in Wilderness Society v. Kane County. In that case, the en banc Tenth Circuit ruled by a vote of 9 to 2 that an environmentalist group’s lawsuit to vindicate the property rights of the federal government should have been dismissed. The majority opinion for six judges ruled that the group lacked prudential standing to sue. Gorsuch did not join that opinion but instead wrote an opinion concurring in the judgment that rested on mootness and redressability grounds. One of the two judges who joined his opinion was liberal Clinton appointee Mary Beck Briscoe. In quoting the dissent’s criticism of the majority opinion, LCCHR leaves the false impression that it applies to Gorsuch’s concurrence.

LCCHR also errs by omission. It fails to note, much less credit Gorsuch for, his opinion in Energy & Environmental Legal Institute v. Epel, which rejected a constitutional challenge to a Colorado clean-energy law. Lefty environmental groups celebrated Gorsuch’s ruling when it was issued.

* * *

I thank the tireless readers who have made it with me to the end. I would not have bothered to address LCCHR’s letter so extensively but for the fact that some people, whether from gullibility or political bias, might be inclined to take it seriously. But what we see here, as we’ve already seen with People for the American Way and American Bridge, is a shoddy and thinly disguised political attack made by folks who amply demonstrate that they have no idea what good judging entails or no interest in seeing it prevail.


‘Occupy’ Law Professor’s Empty Attack on Gorsuch—Part 1

February 22, 2017

It’s a good thing that Fordham law professor Zephyr Teachout’s official bio touts her as an “immensely talented and creative scholar”—because you sure wouldn’t know it from her Washington Post (online only?) hit piece on Supreme Court nominee Neil Gorsuch. Or does it take immense talent to string together a series of boilerplate attacks? And is it creative to just make things up out of whole cloth?

Teachout, an Occupy Wall Street supporter who recently ran for Congress, and lost, as a Bernie Sanders favorite, tries to play the leftist populist card against Gorsuch. (Her piece was initially titled “Neil Gorsuch always sides with big business, big donors and big bosses,” but the “always” has now been dropped, and a more tentative subtitle has been added.) Teachout’s piece is replete with sweeping claims:

Gorsuch’s record on the bench reveals a man with a strong top-down streak, a preference for concentrated wealth and power. He has consistently been the friend of big business and monopolies at the expense of competition and open markets, and the friend of big donors at the expense of small donors. In disputes between the employee and employer, he sides with the boss.

She rails about what a “Gorsuch economy” and a “Gorsuch democracy” will look like, and she claims that Gorsuch’s views on antitrust and campaign finance “reveal a judge who will further open the way for a few wealthy people to rob the American people of their basic freedoms and properties, and to subvert our democracy once and for all.”

Teachout barely tries to provide any actual evidence for her sweeping claims. Let’s look at her feeble case against Gorsuch:

1. After a longwinded misframing of antitrust law (which I will address in my Part 2 post), Teachout finally cites two of Gorsuch’s opinions in which, she complains, he “found no antitrust violations despite substantial evidence that a dominant player used its power to push out rivals.”

In Novell v. Microsoft, Gorsuch wrote a unanimous panel opinion that held that the district judge properly ruled that Microsoft had no duty to share its intellectual property with Novell. So that’s four judges on one side, and Teachout on the other. Plus, the Supreme Court denied Novell’s petition for certiorari, and the Obama administration did not support that petition.

Gorsuch explained that it’s rare that a business’s unilateral refusal to share its property with its rival violates the antitrust laws and that Novell had presented no evidence from which a jury could find that one of those rare situations existed. Teachout claims that Gorsuch, “a strict follower of the formalistic theories of Chicago School economics,” “elevated the writing of conservative academics above the congressional intent underpinning antitrust law.” But Gorsuch’s opinion, far from relying on the “writing of conservative academics,” extensively discusses and applies Supreme Court precedents. His opinion doesn’t include a single mention of Bork or Posner or (unless I missed it) any other Chicago School academic. He instead has a dozen or so secondary cites to the hornbook written by Phillip Areeda of the rival (and putatively more moderate) Harvard School.

The second Gorsuch opinion that Teachout complains of is Four Corners Nephrology Associates v. Mercy Medical Center. Teachout can’t even muster a specific sentence about the opinion, and no wonder: Gorsuch’s unanimous opinion was joined by Robert Henry and William Holloway, both Democratic appointees.

(Teachout doesn’t even link to the two opinions she is criticizing. Her links instead are only news to articles about them, one of which isn’t even publicly available.)

2. Teachout likewise provides no support for her claim that on campaign finance Gorsuch is “the friend of big donors at the expense of small donors.” Teachout repeats the Left’s false talking point that in his concurrence in Riddle v. Hickenlooper Gorsuch “suggested that donating to a politician is a ‘fundamental’ right that ought to be afforded the highest form of constitutional protection.” She further frets that that supposed suggestion “matters because Gorsuch could vote to strike down the existing limits of $2,700 per person for a federal candidate.” But, as I’ve explained, far from making any “suggest[ion]” of his own, Gorsuch was simply highlighting the confusion that he saw in the Supreme Court’s precedents. Further, he cited with approval the federal “model” of regulating campaign contributions, so it’s beyond strange to read his opinion as evidence that he would strike down the federal limits.

That’s it. There’s nothing else in Gorsuch’s record that Teachout cites in support of her outlandish characterizations.


‘Occupy’ Law Professor’s Empty Attack on Gorsuch—Part 2

February 22, 2017

Having shown in my Part 1 post that Fordham law professor Zephyr Teachout has no actual evidence to support her Occupy Wall Street attack on Neil Gorsuch, I’ll now turn to her broader misframing of antitrust law.

Teachout purports to present the “two sharply different philosophies” of antitrust law that “have emerged” among Supreme Court justices in “the 137 [sic; should be 127] years since Congress passed the Sherman Act.” In her cartoonish account, on one side is her “democratic,” big-is-bad philosophy that holds that it is “vital to use antitrust law to distribute power and opportunity as widely as possible in society.” On the other side is the “anti-democratic” view that “allows the rich and powerful to do whatever they will to the independent businessman and farmer.”​

The historic battle in antitrust is better understood as over whether the antitrust laws protect competitors or competition. That battle has been fought and won by the latter view, as in recent decades a consensus has developed among conservative and liberal justices that the antitrust laws protect competition (and advance the public interest by doing so). Thus, Justice Brennan, in his majority opinion in Cargill, Inc. v. Monfort of Colorado (1986), explained the concept of antitrust injury by citing the “principle that the ‘antitrust laws … were enacted for “the protection of competition, not competitors.”’” For that proposition, he quoted a unanimous opinion written in 1977 by Justice Thurgood Marshall.

Teachout also makes the bizarre claim that Justice Scalia in his three decades on the Court “undermine[d] basic tenets of antitrust law.” But all that Teachout offers in support of that extravagant claim is Justice Scalia’s majority opinion in Verizon Communications v. Trinko (2004), which held that a complaint that an incumbent local telephone company had breached its statutory duty to share its network with its competitors did not allege a violation of section 2 of the Sherman Act. (Disclosure: I worked for Verizon and its predecessor company GTE from 1995 to 2001.)

Among the justices who joined Scalia’s opinion in Trinko were Ginsburg and Breyer. Indeed, Scalia favorably cites two Breyer opinions, one as a justice, one as a First Circuit judge. There were no dissenters. (The three justices who didn’t join Scalia’s opinion—Stevens, Souter, and Thomas—would have ruled that the plaintiff lacked standing to assert its antitrust claim.)

Continuing in fantasy mode, Teachout asserts that Trinko “had a chilling effect on [antitrust] prosecutions.” Oh, really? Prosecutions under section 2 of the Sherman Act have long been rare, and there is no reason to think that Trinko had any effect on them. And Teachout’s claim that Trinko “is part of the reason a handful of big companies now dominate U.S. markets for cable, drugs, hospital beds, seeds, eyeglasses, office supplies, milk, beer and books” (emphasis added) seems to be just another way for her to gripe that her own “philosophy” of antitrust has been thoroughly rejected and marginalized.

In short, the one and only person whom Teachout’s piece exposes as an extremist on antitrust law is Teachout herself.


Trucking Rotten Cargo Against Gorsuch

March 2, 2017

From my Georgetown panel discussion (video here) yesterday on the Gorsuch nomination, I gather that the Left may try to flog Gorsuch for his dissent in TransAm Trucking v. Administrative Review Board. I briefly addressed one criticism of that dissent in this post, but will here offer a more extended account that I hope will help enable the reader to assess any other criticisms.

1. Let’s start with the facts and procedural background. (I’m borrowing heavily from the majority opinion, but am not bothering to include quotation marks.)

Alphonse Maddin was driving a tractor-trailer for his employer, TransAm Trucking, late one January night. After missing his fuel stop, he couldn’t find the next fuel station and his gas gauge was below empty. So he pulled to the side of the interstate highway to figure out what to do next. When he tried to get back on the highway ten minutes later, he was unable to do so because the brakes on the trailer had locked up in the subzero temperatures.

Maddin called the TransAm dispatcher to report the frozen brakes and was advised that a repair truck would be sent to him. But while waiting, he discovered that his heating unit wasn’t working. He eventually fell asleep, but when awakened by a phone call some two hours after he had pulled over, realized that his torso was numb and that he could not feel his feet. He called the dispatcher again and was told to “hang in there.”

Some thirty minutes later, concerned about continuing to wait in the freezing temperatures without heat, he unhitched the trailer from the truck and called his supervisor to tell him that he was leaving to seek help. The supervisor told him not to leave the trailer. But Maddin drove off. The repair truck finally arrived about fifteen minutes later, and Maddin drove the truck back to the trailer.

Some days later, TransAm fired Maddin for abandoning his trailer.

In a complaint with OSHA (the Labor Department’s Occupational Safety and Health Administration), Maddin claimed that TransAm, by its firing of him, violated the whistleblower protections of the Surface Transportation Assistance Act (STAA). OSHA dismissed the complaint, but an administrative law judge ruled in favor of Maddin, and the Department of Labor’s Administrative Review Board (ARB) affirmed the ALJ’s ruling.

2. Directly reviewing the ARB’s decision, a divided panel of the Tenth Circuit affirmed that decision. The majority opinion was written by Judge Michael Murphy (a Clinton appointee) and was joined by Judge Carolyn McHugh (an Obama appointee). (Mea culpa: At yesterday’s event, I had the alignment in the case wrong and mistakenly thought that Gorsuch won a majority for his position.)

Here’s my stab at a neutral and succinct summary of the majority’s position:

The STAA’s whistleblower provision makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” TransAm argues that Maddin did not “refuse[] to operate” the truck but instead operated it in defiance of instructions to stay put. But the ARB is entitled to Chevron deference on its reading of the provision. Under its interpretation, an employee “refuses to operate” a vehicle when he “refuses to use his vehicle in the manner directed by his employer even if that refusal results in the employee driving the vehicle.” (Emphasis added.)

The ARB’s interpretation is compatible with one dictionary meaning of operate—“to control the functioning of”—and it furthers the purposes of the STAA. So we defer to it as a permissible interpretation under Chevron. Therefore, Maddin engaged in STAA-protected activity when he unhitched the trailer and drove off in the truck.

3. In his dissent, Gorsuch cogently disputes that the STAA’s whistleblower provision can reasonably bear the ARB’s reading of it:

[T]hat statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department [of Labor] would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place. [Italics in original; underlining added.]

4. By my lights, Gorsuch easily wins the battle over the statute’s text. But even anyone who disagrees with his textualist approach would have to strain hard to depict his dissent as evidence that Gorsuch is hostile to workers.

Gorsuch actually presents the facts, in the first paragraph of his opinion, in a manner as favorable as possible to Maddin. He, for example, doesn’t mention that Maddin had missed the earlier fuel stop, nor does he question the wisdom of Maddin’s decision to stop his truck on the side of the interstate highway in subzero temperatures. He ignores these unfavorable matters for the simple reason that they’re irrelevant to the legal question before the court. As he puts it:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

That sound understanding of the judicial role is exactly what we should want in a Supreme Court justice.


Illegitimate Attacks on Legitimacy

March 3, 2017

On Slate, Dahlia Lithwick and law professor Sonja West try to concoct an argument for indefinitely postponing Neil Gorsuch’s confirmation hearing. They recklessly raise questions of legitimacy and, in so doing, go far outside the bounds of responsible argument.

In broad outlines, the Lithwick/West argument goes like this:

1. Senate Republicans “insisted” that any action other than keeping the Scalia vacancy open “would tarnish the legitimacy of the appointment.” They argued that “the fact that Barack Obama had a mere year left of his presidency represented a full-blown crisis of legitimacy.”

2. “Nobody in the Senate can plausibly take the view that Trump’s claims to the White House are more legitimate, more publicly accepted, and more robust than were Obama’s in March 2016.” Trump “might not have a valid claim to the office” of president.

3. “The question here [i.e., on Gorsuch] is about the legitimacy of the nomination itself.” “Until the presidency is no longer under a cloud, there can be no hearings, and there can be no votes.”

Some observations:

1. Lithwick and West ridiculously mischaracterize the Republican position on keeping the Scalia vacancy open. Tellingly, they don’t even bother to try to cite anything that supports the “legitimacy” rhetoric they impute to Republicans.

The Senate confirmation process is inherently political, and Senate Republicans made a political argument for keeping the vacancy for the next president to fill. That argument did not remotely deny President Obama’s constitutional authority to nominate someone to fill that vacancy (much less assert a “full-blown crisis of legitimacy”). It merely counterposed the Senate’s constitutional authority to decide not to act on such a nomination.

More to the point of Lithwick’s and West’s silly “legitimacy” talk: Senate Republicans never remotely suggested that if the Senate confirmed the Garland nomination and President Obama then appointed him to the Court, the “legitimacy of the appointment” would somehow be “tarnish[ed].” On the contrary: It’s precisely because such an appointment would of course have been fully legitimate that Senate Republicans acted to prevent confirmation.

2. Lithwick and West invent their phony claim about Senate Republicans’ imagined rhetoric of “legitimacy” in order to justify their own rushing onto that perilous terrain.

I would submit that the rule of law in our constitutional republic depends on a very strong presumption that anyone who lawfully holds an office has constitutional legitimacy. Yes, there’s plenty of room to object to how a person exercises the powers of the office and to complain that certain actions are unlawful and therefore illegitimate. But a contention that a person’s “claim to the office” is itself illegitimate is something very different.

I have on numerous occasions vigorously criticized Donald Trump, both as a candidate and as president, and I respect many of the concerns that his more ardent critics have. But intense political criticism is one thing. Disputing his legitimacy as president is quite another.

The vague speculations that Lithwick and West make don’t remotely call into question the fact that Trump is lawfully our president. It’s grossly irresponsible of them to suggest otherwise and to recast their political objections to Trump as questions of Trump’s “legitimacy.”

3. If and when the Senate confirms the Gorsuch nomination and President Trump appoints Gorsuch to the Court, Justice Gorsuch will be a fully legitimate justice. It’s time to move forward with the process and to put an end to the sort of poisonous follies that Lithwick and West are engaging in.


‘Former Client Recommended Gorsuch for Tenth Circuit’

March 15, 2017

The headline above surely isn’t as attention-grabbing, much less as conspiracy-mongering, as the actual headline on this New York Times article—“Neil Gorsuch Has Web of Ties to Secretive Billionaire”—but it does strike me as markedly more accurate.

For starters, the article itself describes the billionaire in question, Philip F. Anschutz, merely as “publicity-shy” rather than “secretive.” And if the NYT reporters wanted to learn more about Mr. Anschutz, they might have been able to get a useful lead or two from their own editorial-page editor James Bennet, whose brother, current Colorado senator Michael Bennet, worked for Anschutz for years.

But, more importantly, here’s the core of what the supposed “web of ties” between Gorsuch and Anschutz is alleged to consist of:

As a lawyer at a Washington law firm in the early 2000s, Judge Gorsuch represented Mr. Anschutz, his companies and lower-ranking business executives as an outside counsel. In 2006, Mr. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court. And since joining the court, Judge Gorsuch has been a semiregular speaker at the mogul’s annual dove-hunting retreats for the wealthy and politically prominent at his 60-square-mile Eagles Nest Ranch.

Two observations:

1. The article’s claim that Mr. Anschutz “successfully lobbied … the Bush administration to nominate Judge Gorsuch to the federal appeals court” strikes me as curious phrasing. To be sure, a lawyer for Anschutz sent a letter on his behalf to the White House recommending that Gorsuch be nominated. But are we really supposed to believe that the Bush White House, on the lookout for bright young conservatives to appoint to the federal bench, had to be “lobbied” by Anschutz to select Gorsuch?

Gorsuch, after all, was serving at the time in the Department of Justice as the principal deputy associate attorney general. As a former D.C. Circuit and Supreme Court law clerk who practiced law in D.C., he was well known in conservative legal circles. And as a native Coloradan and former clerk to Byron White, he was an obvious pick for the Tenth Circuit vacancy that opened up in Denver.

As it happens, someone in the Bush administration who was very involved in the process that led to the nomination of Gorsuch tells me that, as far as he recalls, Anschutz’s name never came up during the process. What he does recall is that the idea to nominate Gorsuch arose during the normal interplay between the White House Counsel’s office and senior DOJ leadership, and that both the White House and DOJ immediately responded enthusiastically.

2. The article’s claim that Mr. Anschutz “sought to secure [the Tenth Circuit seat] for [Gorsuch]” sounds nefarious. But it’s far more plausible that Anschutz simply recognized Gorsuch to be, as the letter puts it, “an exceptionally talented lawyer” who would make an excellent judge.

What, after all, could possibly have been in it for Anschutz? He lost his past (and potential future) lawyer to the Tenth Circuit, where Gorsuch (as Anschutz and his top legal team would surely have foreseen) regularly recused himself from all matters involving Anschutz and his companies. That’s hardly the stuff of a conspiracy.

Disclosure: As its publicly available tax returns show, the Anschutz Foundation has generously supported the Ethics and Public Policy Center, the think tank I run. For example, this return—the most recent I have been able to find quickly in searchable format—reflects a $20,000 contribution in 2012.


More Andy Schlafly Smears of Trump Supreme Court Candidate Neil Gorsuch—Part 1

January 24, 2017

There he goes again.

I’ve already responded at length to Andy Schlafly’s deceptions and distortions about various of the Supreme Court candidates on President-elect Trump’s list (see links here—candidates whom his late mother Phyllis Schlafly described as “top-notch” and took credit for putting on Trump’s list. Schlafly has never engaged my arguments, nor has he even linked to them, as he understandably prefers to keep his gullible minions in the dark.​

Amid reports (of who-knows-what reliability) that Tenth Circuit judge Neil Gorsuch has emerged as the frontrunner, Schlafly has renewed his attack on Gorsuch. He now claims—in boldface and italics that I’ll spare you—that Gorsuch “is NOT pro-life.” (For what it’s worth, in his initial assessment, Schlafly reserved that stronger condemnation for three other candidates; he instead placed Gorsuch in the group of those who “probably would NOT be pro-life.”)

For the sake of comprehensiveness, I will address all the claims about Gorsuch that Schlafly makes in his latest email as well as in the link to further information that he includes in that email. Many of these I already dismantled in my initial critique. So let me start with some of Schlafly’s new—and also hilariously incompetent—falsehoods:

1. Schlafly now claims that Gorsuch has “written multiple opinions that demonstrate he’s not pro-life.” Here’s the supposedly powerful example he offers:

For example, in the case of Pino v. U.S., Gorsuch discussed whether a 20-week-old “nonviable fetus” had the same rights as a “viable fetus.” Gorsuch, showing that he is not pro-life, indicated that his answer is “no” unless the Oklahoma Supreme Court specially found rights for the “nonviable fetus.” Rather than render a pro-life ruling, Gorsuch punted this issue to the Oklahoma Supreme Court for it to decide. Gorsuch’s approach is similar to the unjust approach based on viability that underlies Roe v. Wade.

Schlafly doesn’t provide a link to Gorsuch’s opinion. Why not? Perhaps because anyone reading it would quickly discover these things:

Michael and Amy Pino were suing an Indian care hospital and its doctor for the wrongful death of their nonviable stillborn baby. Everyone recognized that the liability of the defendants turned on whether Oklahoma law allowed a wrongful-death action for a nonviable stillborn. But the district court declined the Pinos’ request to certify the question to the Oklahoma supreme court and instead granted summary judgment against the Pinos.

On appeal, the Pinos asked the Tenth Circuit panel to certify the question to the Oklahoma supreme court. In a unanimous opinion by Gorsuch (which pro-life champion Michael McConnell joined), the Tenth Circuit granted their request. So much for “punting.”

Schlafly’s claim that Gorsuch “indicated that his answer is ‘no’ unless the Oklahoma Supreme Court specially found rights for the ‘nonviable fetus’” is sheer fantasy.

Schlafly also conveniently omits the aftermath: The Oklahoma supreme court ruled that the cause of action did exist, and Gorsuch then wrote an opinion that reversed the district court’s grant of summary judgment against the Pinos and revived their claim. Yet Schlafly somehow dares to use this case to smear Gorsuch.

2. Schlafly claims that Gorsuch “opposes overturning precedent even when it’s wrong.” In his fuller charge, Schlafly writes:

Gorsuch also clings to bad precedent, and is an extreme supporter of stare decisis, both of which are excuses for upholding Roe v. Wade rather than overturning it. “Our duty to follow precedent sometimes requires us to make mistakes,” Gorsuch declared in ruling against the Second Amendment rights of man [sic] before his court. United States v. Games-Perez, 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring).

In the panel ruling in Games-Perez, Gorsuch did indeed regard himself as bound to abide by controlling circuit precedent, just as nearly every circuit judge not named Stephen Reinhardt also does. But Gorsuch didn’t stop there. In a 20-page opinion, he urged the en banc Tenth Circuit to reconsider and overrule the wrong precedent.

In short, Schlafly’s claim that Gorsuch “clings to bad precedent, and is an extreme supporter of stare decisis” is flatly contradicted by the very case that Schlafly invokes. Nor, I’ll add, did the defendant in that case assert, or did Gorsuch rule against, any Second Amendment rights. Rather, it was Gorsuch who, in support of his criticism of circuit precedent, observed that “the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.”​

More to come.


More Andy Schlafly Smears of Trump Supreme Court Candidate Neil Gorsuch—Part 2

January 24, 2017

Numbering serially from my Part 1 post, let’s continue the march through Andy Schlafly’s ridiculous smears of Tenth Circuit judge Neil Gorsuch:

3. Schlafly declares that Gorsuch “has never said or written anything pro-life.”

But as I pointed out nearly two months ago in response to Schlafly’s first round of attacks, in his courageous doctoral dissertation turned book, The Future of Assisted Suicide and Euthanasia, Gorsuch propounds the principles that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” If that doesn’t count as “pro-life,” then what does?

Repeating myself further: Schlafly somehow continues to fail to acknowledge, much less credit Gorsuch for, Gorsuch’s powerful dissent (see pp. 16-27 here) from the Tenth Circuit’s recent denial of rehearing en banc in Planned Parenthood Association of Utah v. Herbert. In the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood’s Utah affiliate. But after the district court denied Planned Parenthood’s request for a preliminary injunction against Herbert’s directive, a divided panel, on very weak reasoning, ruled that Planned Parenthood was entitled to a preliminary injunction. Gorsuch’s dissent dismantles the panel majority’s reasoning.

4. Schlafly now invokes himself as a personal witness: “I knew him in law school and afterwards, and I’ve reviewed his opinions and his book.” Well, I have the same level of trust in Schlafly’s account of his personal knowledge of Gorsuch (which Schlafly somehow didn’t invoke in his initial attack) as he’s earned from his review of Gorsuch’s opinions and book: Somewhere between zero and negative infinity.

5. Schlafly now says that Gorsuch “supports special rights for transgenders.” More fully:

Gorsuch is also a big supporter [of] granting special rights to men who say they have a female general [sic] identity. He sided with civil rights for “gender identity” in 2009 by adhering to a Ninth Circuit opinion by the liberal Judge Reinhardt, which held the federal law called “Title VII” protects [sic] discrimination against gender identity. Kaslt [sic] v. Maricopa County Cmty. College Dist., 325 Fed. Appx. 492 (9th Cir. 2009) (Gorsuch, J., joining the court opinion). At the time virtually every other circuit rejected this liberal view. More recently Judge Gorsuch expressed his support for referring to biological men as women.

Let’s start with Schlafly’s misuse of Kastl. (The fact that he misspells it Kaslt is telling: An email criticism of Gorsuch from another source used this misspelling; I have to wonder whether Schlafly just borrowed that criticism without ever reading the opinion.)

In Kastl, Gorsuch, sitting by designation on the Ninth Circuit, joined an unpublished per curiam ruling that affirmed a district court’s grant of summary judgment against a man who identified as female and was barred from using the women’s restroom. That’s right: Schlafly’s primary support for his claim that Gorsuch “supports special rights for transgenders” and is “a big supporter [of] granting special rights to men who say they have a female general [sic] identity” is a case in which Gorsuch ruled against such a person.

In the course of ruling against the plaintiff, the Kastl opinion acknowledged and recited Ninth Circuit precedent, Schwenk v. Hartford (2000), for the proposition that “it is unlawful [under Title VII] to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women.” That Ninth Circuit precedent in turn rested on the Supreme Court’s (poorly reasoned) decision in Price Waterhouse v. Hopkins (1989).

Gorsuch’s duty in the case was to adhere to Ninth Circuit precedent. The objected-to proposition strikes me as an accurate statement of the Schwenk precedent, an opinion by Stephen Reinhardt that was joined by the senior judge on the Kastl panel. If Schlafly believes otherwise, he should try to make an actual argument. (It’s too complicated to go into here, but the proposition that Title VII protects everyone against being discriminated against for “not behav[ing] in accordance with an employer’s expectations for men or women” is not quite the same as the proposition that Title VII protects against discrimination on the basis of gender identity.)

Schlafly also claims: “More recently Judge Gorsuch expressed his support for referring to biological men as women.” Playing mindreader, I’m guessing that Schlafly is referring to the panel opinion that Gorsuch joined in Druley v. Patton (2015). In that opinion, Judge Jerome Holmes ruled that an Oklahoma state prisoner was not entitled to preliminary injunctive relief. The prisoner, who had changed his legal name to Jeanne Marie Druley and who had had two surgeries to give himself a purportedly female body, argued that receiving inadequate hormone medications and being housed in an all-male facility violated his Eighth Amendment rights.

Throughout his opinion, Holmes uses feminine pronouns for Druley. Gorsuch joins Holmes’s opinion in full.

As my own account shows, I strongly believe that pronouns should comport with objective reality and that no one has a right to dictate his preferred pronouns. That said, the situation with Druley is arguably complicated by the fact that he also had his birth certificate changed to identify him as female. Specifically, it might well be that principles of federalism call for federal judges (though not us ordinary citizens) to accept a person’s sex as defined under state law.

In any event, judges on a panel routinely accord considerable deference on wordsmithing to the judge who is authoring an opinion. Thus, even if I, as a judge, would have encouraged Holmes to use masculine pronouns or to try to write around the issue (which would be very awkward) and even if I would have written a one-sentence concurrence if he hadn’t, I think that it is beyond absurd to mischaracterize Gorsuch’s joinder as “express[ing] his support for referring to biological men as women.”


More Andy Schlafly Smears of Trump Supreme Court Candidate Neil Gorsuch—Part 3

January 24, 2017

Oops, I see that my Part 1 and Part 2 posts overlooked this stinging new charge by Andy Schlafly: “And he is no Scalia, as Gorsuch was not even on the Law Review in law school.”

Yes, it’s true: Neil Gorsuch didn’t join the board of editors of the Harvard Law Review. As someone who did, I’ll give Gorsuch credit for not wasting his time on one of the most pointless enterprises I’ve ever been engaged in. Rarely have so many spent so much time publishing so much of so little value to be read by so few.

Gorsuch’s judicial record amply attests to his remarkable legal ability.

By the way, Schlafly, believe it or not, was on law review at Harvard. So that ought to tell you everything you need to know about whether membership on law review is a meaningful proxy for legal ability.


Senator Jeff Merkley, D-Cuckooland—Part 1

February 3, 2017

In an op-ed in today’s New York Times, Oregon senator Jeff Merkley urges his fellow Senate Democrats to filibuster the Supreme Court nomination of Judge Neil Gorsuch and (as the title of his print piece puts it) “make the Republicans go nuclear.”

I hope very much that Democrats follow Merkley’s foolish advice, for a filibuster of the Gorsuch nomination is the best possible set-up for Senate Republicans to abolish the filibuster. Abolition of the filibuster would pave an easy confirmation path for President Trump’s next nominees to the Supreme Court. And the prospect of that easy path would in turn encourage the White House to make bolder picks than it might otherwise do.

Let’s march through Merkley’s argument:

1. Merkley’s major claim is that “Senate Republicans are in the midst of pulling off one of the great political heists in American history: the theft of a seat on the United States Supreme Court.” Merkley repeats the “theft” charge two more times and uses “crime” three times and “steal” twice.

Merkley’s incendiary rhetoric is as irresponsible as it is idiotic. This Wall Street Journal house editorial yesterday, “The Myth of the Stolen Supreme Court Seat,” nicely answers Merkley. But let me highlight a few points.

a. When President Obama’s nomination of Merrick Garland was pending, Merkley claimed that “the Constitution requires” Senate Republicans “to hold hearings and a vote on his nomination.” It appears from his screed (“crime against our Constitution”) that he continues to hold that position.

Merkley’s constitutional claim is (to borrow from law professor Erwin Chemerinsky’s vocabulary) “silly” and “obviously fatuous.”

The Appointments Clause (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything. (It’s entirely through the operation of the Senate’s plenary rulemaking power that the Senate has committees at all and empowers those committees to hold hearings.)

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So anyone who contends that the Constitution somehow required “hearings and a vote on [the Garland] nomination” has zero basis in text and is arguing against longstanding practice. That practice of defeating nominees by inaction includes what Democrats did to lots of President George W. Bush’s judicial nominees in 2007 and 2008, after they regained control of the Senate.

b. Even if Merkley tried to retreat to a more modest claim that Republicans acted contrary to accepted norms, that claim would fail. The non-existence of any such norm is shown by Joe Biden’s carefully prepared Senate floor statement way back in 1992 when he charted exactly the course that Senate Republicans followed and by Chuck Schumer’s similar threat in mid-2007, well in advance of the election year. (The fact that no vacancy arose in either instance is irrelevant to the proposition that the statements show that no such norm existed.)

Further, President Obama’s former White House counsel has candidly acknowledged that, if the situation were reversed, she would have recommended to Senate Democrats the same course of action that Senate Republicans took. Political rhetoric aside, I can’t imagine that anyone who knows the process really thinks that Democrats would have acted differently. If Merkley had an ounce of capacity for self-reflection, he would recognize that he would have been a fervent cheerleader for that course.

2. What’s all the more amazing is the utter incoherence of Merkley’s call for a filibuster of the Gorsuch nomination.

Senator Merkley, if you genuinely (if very stupidly) believe that the Constitution required Senate Republicans to have a final vote on the Garland nomination, how can you in good conscience propose a filibuster designed to prevent a final vote on the Gorsuch nomination? You either spout constitutional claims that you don’t believe, or you propose to act in violation of what you understand to be your oath to the Constitution.

More in Part 2.


Senator Jeff Merkley, D-Cuckooland—Part 2

February 3, 2017

Continuing with Oregon senator Jeff Merkley’s New York Times op-ed urging a filibuster of the Gorsuch nomination (and numbering serially from my Part 1 post):

3. Merkley, a non-lawyer, obviously knows zilch about Judge Gorsuch. All that he can muster about Judge Gorsuch is the silly claim that Gorsuch is “an extreme right-wing jurist who has ruled dozens of times for the powerful and against the less fortunate.”

Yes, that’s the same Gorsuch whom (to cite just one of countless sources of praise) liberal Neal Katyal, acting solicitor general in the Obama administration, has hailed (also in the pages of the New York Times) as “an extraordinary judge” who “brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court”; as “someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws”; as having a record that “reveal[s] a commitment to judicial independence [and] that should give the American people confidence that he will not compromise principle to favor the president who appointed him.” Yeah, that’s some “extreme right-wing jurist.”

As for Merkley’s claim that Gorsuch “has ruled dozens of times for the powerful and against the less fortunate”: As a statistical matter, I’m sure that’s true. Gorsuch, after all, has written opinions in some 900 cases or so, and thus has probably participated in nearly 3,000. It would be amazing if he hadn’t “ruled dozens of times” for and against various classes of parties. The same is surely true of Merrick Garland and of anyone else who has been on the bench for any significant period of time.

But note what’s conspicuously missing from Merkley’s claim: Any charge that Gorsuch wrongly ruled in such cases. A Supreme Court justice takes an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.” Complying with that oath means ruling for the powerful when they are in the legal right and against them when they are not. Katyal expresses his confidence that Gorsuch “will live up to that promise.” Merkley seems not even to understand what the promise entails.

4. Merkley warns that “lowering the required vote threshold [i.e., abolishing the filibuster] will not be such an easy decision for the Republicans, because the day will come when Democrats will control both the White House and the Senate” and Republicans will then “wish the nuclear option had not been invoked.”

This argument is wrong for two reasons. First, as Senate Democrats made clear before the election, when they regain the majority, they will abolish the Supreme Court filibuster whenever they need to do so to get a Democratic nominee confirmed. Second, there’s very little difference between the sort of Democratic nominee that Republicans would filibuster and the sort they let go through. The filibuster is a much more powerful tool for Democrats against Republican appointees.

5. Oddly, after devoting almost entirely his whole op-ed to explaining that he categorically opposes the Gorsuch nomination as retribution for Republicans’ treatment of Garland, Merkley asserts in his closing paragraph that “Categorical opposition to this nomination is not retribution for the treatment of Judge Garland.” Perhaps you need to think things through a little more carefully, Senator Merkley.

6. On top of all his other screeching rhetoric, Merkley works in the Koch brothers. He claims that “the motivation” for Senate Republicans to work to keep the Supreme Court vacancy open was their desire to keep the Koch brothers’ “dark money” flowing to Senate Republicans.

Yeah, right. There were lots of reasons that converged to drive Senate Republicans to keep the vacancy open, and they related predominantly to the damage that a liberal Supreme Court majority would do to the Constitution and to various precedents (among them, to be sure, Citizens United, but only as one among many.)


Senator Shaheen: No Filibuster of Gorsuch

February 8, 2017

On the Senate floor yesterday evening, Democratic senator Jeanne Shaheen of New Hampshire strongly declared that neither she nor any of her fellow Democrats she’s “talked to” have any intention of filibustering the Gorsuch nomination. Here’s the Congressional Record transcript of her remarks (page S845):

I wanted to respond to my colleague from South Dakota because I think for Senator Thune to come to the floor and castigate Democrats for holding up Judge Gorsuch, who has just been nominated, and for suggesting we are going to filibuster, the fact is, throughout most of last year we saw the Republican majority in this body hold up the nominee of Merrick Garland, President Obama’s nominee.

For the first time in history [sic — not true], this body refused to hold a hearing on a nominee for the Supreme Court, refused to give an up-or-down vote, and to suggest that we should not get a fair hearing on the nominee to the Supreme Court — Judge Gorsuch — I think is just not [something that’s]* going to be good for the American people.

Unlike the Republican majority, I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote. Everybody I have talked to agrees he should get a hearing and an up-or-down vote. [Emphasis added.]

And here’s a video that captures the last part:

This would seem to be “game over” for any Democratic filibuster effort.

I will note that Shaheen’s communications director promptly insisted on Twitter that Shaheen didn’t mean what she said and that by “up-or-down vote” she “meant a cloture vote”! So it’s possible that Shaheen will try to backtrack.

* As the video shows, the transcript is mistaken when it says “someone who is” (which makes no sense).


Shameless Schumer

February 8, 2017

Never mind (as I noted last week) that the Washington Post’s Fact Checker, Glenn Kessler, has already explained that there is not, and never has been, a 60-vote “standard” for Supreme Court nominees. Senate minority leader Chuck Schumer continues to propagate the silly notion that such a standard exists.

For seven of the eight current Supreme Court justices, the senators unanimously consented to affording them a straight up-or-down vote. The lone exception was Samuel Alito, whose nomination then-Senator John Kerry tried to filibuster from the ski slopes of Davos, Switzerland. So while there is one recent precedent for an irresponsible Democratic filibuster effort against a superbly qualified nominee of a Republican president, there is no broader practice that supports Schumer’s talk of a 60-vote “standard.”

To be sure, Schumer remains free to try to rally his fellow Democrats to filibuster the Gorsuch nomination. As I’ve explained, all things considered, I’d be happy to see him try. But Schumer’s effort to pretend that this wouldn’t be an extraordinary step shouldn’t be taken seriously by anyone.


Senator Schumer’s Washington Post Handmaidens

March 24, 2017

Habituated as I am to the Washington Post’s left-wing bias, I’m still surprised by particular glaring instances. Take, for example, today’s front-page article, written by Robert Barnes, Ed O’Keefe, and Ann E. Marimow, on Senator Schumer’s filibuster threat against Supreme Court nominee Neil Gorsuch.

The article is titled (in the print edition) “Filibuster against Gorsuch promised.” It asserts early on:

Republicans have vowed Gorsuch will be confirmed even if it means overhauling the way justices have long been approved. Traditionally, senators can force the Senate to muster a supermajority just to bring up the nomination of a Supreme Court justice. [Emphasis added.]

It later observes that “the 60-vote threshold has not caused a problem” for recent Supreme Court nominees.

Some observations:

1. What a strange headline. (I presume that the editors, not the reporters, are responsible for the headline.)

Filibusters aren’t usually “promised” (a word with very positive connotations); they’re threatened. Indeed, my quick Lexis search on WaPo articles over the last 10 years has filibuster associated with threat some 85 times, compared to a mere three for promise. (My search included cognates of the three words.)

To be sure, every threat could be recast as a promise (“the kidnapper promised to kill his hostage”), but the usual parlance is that filibusters are threatened.

And, no, the headline can’t be defended on the ground that Senator Schumer’s statement has gone beyond a threat. Indeed, the carryover headline (on page A5) sensibly speaks of “Filibuster threat….”

The passive voice in the headline is also odd. Why not “Schumer threatens Gorsuch filibuster”? I’m guessing that the answer is that the headline editors sensed that it wouldn’t poll as favorably.

2. The passage indented above gets the Senate tradition exactly backwards. Yes, Senate rules have since 1949 nominally allowed cloture votes on Supreme Court nominees. (And, of course, they allowed the same thing for lower-court and executive-branch nominations up until Democrats abolished the filibuster for those nominations in November 2013.) But the tradition under those rules is that cloture votes have been rare—which is all the more remarkable since any single senator has the power to insist on a cloture vote.

According to the Washington Post’s Glenn Kessler, there have been only four cloture votes on Supreme Court nominees (among the more than 30 nominations to reach the Senate floor since 1949): In 1968, the bipartisan negative votes on cloture blocked LBJ’s effort to elevate Abe Fortas to chief justice. In 1971, a motion to invoke cloture on Nixon’s nomination of William H. Rehnquist failed, but a final merits vote on the nominations was allowed that same day. (That would indicate that the cloture vote wasn’t part of a filibuster effort but was instead done for other reasons, but I haven’t researched the matter.) In 1986, Democrats failed to block cloture on Reagan’s elevation of Rehnquist to chief justice. And in 2006, the Democrats’ filibuster effort against the Alito nomination failed.

In short, the reporters confusingly—and, it seems to me, artfully—misuse “Traditionally” to refer to what the Senate rules allow rather than to the actual practice under those rules.

3. On an accurate understanding of the Senate’s dominant traditional practice, abolition of the filibuster for Supreme Court nominees, far from “overhauling the way justices have long been approved,” would ensure the continuation of that traditional practice.

4. By speaking of a supposed “60-vote threshold” and measuring recent nominees’ final confirmation votes against that supposed threshold, the reporters buy into the very spin that Senate Democrats have been making—and that their own WaPo colleague Glenn Kessler has punished with Two Pinocchios.

5. The bigger picture here is that Senate Democrats have been trying to lay the groundwork to depict their extraordinary potential filibuster as something ordinary—and to paint Republicans as the aggressors for moving to abolish the Supreme Court filibuster. Their goal, of course, is to lower the political costs of filibustering the Gorsuch nomination and to raise the political costs for Republicans to abolish the filibuster.

Barnes, O’Keefe, and Marimow have shown themselves to be eager handmaidens of the Democrats.


How Not To Protect the Legislative Filibuster

March 30, 2017

One argument that a few conservatives are making against abolishing the filibuster for Supreme Court nominees is that doing so would imperil the legislative filibuster. I’d like to explain why I think that this argument is dead wrong and indeed has things backwards.

The argument that retaining the Supreme Court filibuster is necessary or useful to help preserve the legislative filibuster flies in the face of actual Senate traditions. The long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently.* Filibusters over legislation date back to the 1830s. By contrast, nominations (as this law-review article co-authored by parliamentary expert Martin B. Gold puts it) were “swept into” a reform of the filibuster only in 1949 and “only by happenstance.” And even after this nominal inclusion of nominations in the filibuster rule in 1949, Senate practice continued to regard the partisan filibuster of judicial nominees as illegitimate.

Before Senate Democrats launched their campaign of filibusters against President George W. Bush’s appellate-court nominees in 2003, the only filibuster of a judicial nominee was the broadly bipartisan filibuster of LBJ’s effort to elevate Abe Fortas to be Chief Justice in 1968. Specifically, at a time when cloture under Senate rules required the votes of two-thirds of senators present, the cloture vote on Fortas’s nomination fell short by 14 votes: 45 for, 43 against. Of the 43 votes against, 24 were from Republicans and 19 from Democrats. Indeed, of the 66 Democrats in the Senate, only a bare majority—35—voted for cloture. (Twelve somehow managed not to be present at the time their leader scheduled the vote.) The 19 Democrats voting against cloture accounted for nearly half (over 44%) of the total votes against and for over 65 percent of the votes needed to defeat cloture.

Now that the filibuster has been abolished for all other nominations, it is anomalous to retain it for Supreme Court nominations. It would be far better for defenders of the legislative filibuster to emphasize the distinction between Senate practice on nominations and on legislation by treating all nominations differently from legislation. Ironically, they undermine their cause by wrongly insisting that there is some sort of linkage between the nominations filibuster and the legislative filibuster.

It is true, to be sure, that the same means that Senate Democrats used in November 2013 to abolish the filibuster for lower-court nominees and that Senate Republicans would use now to abolish the filibuster for Supreme Court nominees is available to abolish the legislative filibuster. But there has long been Senate precedent for that means (see, e.g., Gold article at pp. 260–269). The legislative filibuster owes its continued existence not to any formal obstacle that would prevent a Senate majority from abolishing it but rather to a widespread consensus that it is valuable and serves the interests of senators.

* Addendum (3/31): Further emphasizing the distinction between Senate practice on legislation and Senate practice on nominations, a Senate staffer highlights this basic point:

These categories [legislation and nominations] are so different that the Senate has completely separate calendars for legislative and executive business and must actually go into executive session to address nominations.


Re: How Not To Protect the Legislative Filibuster

March 31, 2017

On my post emphasizing the distinction between Senate practice on legislation and Senate practice on nominations, a Senate staffer passes along an additional point that I should have made:

These categories [legislation and nominations] are so different that the Senate has completely separate calendars for legislative and executive business and must actually go into executive session to address nominations.

So again: Defenders of the legislative filibuster undermine their cause when they wrongly insist on a linkage between the nominations filibuster and the legislative filibuster.