Neil Gorsuch: The Inside Story

Michael McConnell, formerly a federal appellate judge and now professor of constitutional law at Stanford, is one of America’s top lawyers. His tenure on the 10th Circuit Court of Appeals overlapped with Neil Gorsuch’s time on that bench, so Michael knows Gorsuch well, and they sat on nearly 50 cases together. If anyone is qualified to evaluate Judge Gorsuch as a potential Supreme Court justice, it is Michael McConnell. His assessment of Gorsuch at Hoover’s Defining Ideas therefore deserves attention. Here are some excerpts:

More important than his qualifications are his qualities of mind. He is rigorously intelligent, fair-minded, and one of the finest writers in the entire judiciary. Like Justice Scalia, he tries to minimize the role that judges’ own views play in the interpretation of the law. Perhaps unlike Justice Scalia, a pugnacious lover of intellectual battle whose intellectual inclination was to clarify and sharpen differences, Gorsuch looks for common ground, even with judges of a generally opposing position.
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I asked my research assistant to pull every case in the last five years where Judge Gorsuch sat with both a Republican-appointed and a Democratic-appointed judge and the panel split as to the outcome. The results were striking. In almost a third of the cases, Judge Gorsuch voted with his presumably more liberal Democratic colleagues rather than the presumably more conservative Republicans. That is the mark of an independent, non-partisan jurist.
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Judge Gorsuch is a longstanding proponent of the view that the Constitution must be interpreted according to its text as it was understood by those with authority to enact it. In his words: “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” (Cordova v. City of Albuquerque (2016)). That sometimes leads to conservative results, but not always. As one liberal law professor wrote: “He is way too conservative for my taste, but his decisions are largely principled and fair from his originalist’s view of constitutional interpretation. . . . That approach can result in decisions that don’t reliably fall into any one place on the liberal-to-conservative spectrum.”

If the Constitution, fairly interpreted, does not speak to an issue, Judge Gorsuch leaves it to the political process.
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Judge Gorsuch’s approach has led him to defend the constitutional autonomy of the states – whether exercised by a conservative Republican governor in Planned Parenthood v. Herbert (2016) or a liberal Democratic governor in Kerr v. Hickenlooper (2014). In light of the recent revival of interest in local autonomy in progressive circles, these power-devolving doctrines may win newfound respect.
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Judge Gorsuch has never had a case on abortion rights, same-sex marriage, gun rights, or affirmative action. Any worries or hopes on these issues are purely a matter of speculation. Judge Gorsuch did, however, dissent from a Tenth Circuit decision forbidding the governor of Utah from cutting the funding from Planned Parenthood. The legal issue was the imputation of an unconstitutional motive to the governor without actual evidence of it, which could arise in any number of political contexts. Nothing in his opinion suggests that the abortion context affected his analysis. Gorsuch also dissented from the conviction of a defendant charged with knowing possession of a firearm, on the ground that the government did not prove an element of the crime. This decision has, absurdly, been treated as evidence of pro-gun views.
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Among Judge Gorsuch’s most impassioned commitments is to the freedoms of speech and religion. Probably his best-known cases are Hobby Lobby v. Sibelius (2014), which upheld the right under the Religious Freedom Restoration Act of a closely-held family corporation not to be compelled to pay for insurance coverage of what they sincerely believe to be abortion-inducing drugs, and Little Sisters of the Poor v. Burwell, which applied the same principles to a Catholic religious order. I suspect most Americans agree that Catholic nuns should not be forced to pay for things their religion condemns. In my opinion, a government attentive to civil liberties would never have tried. …

Judge Gorsuch’s commitment to freedom of religion extends to all faith and all kinds of people: to prisoners, to Muslims, to Native Americans, as well as to Christians.

If I were president and were interviewing prospective Supreme Court nominees, I wouldn’t ask their opinion on abortion, gay marriage and so on. I would ask what they think about the administrative state. This is the great constitutional issue of our time. The government we live under, in which most power is exercised by unelected, largely unconstrained federal agencies, is not the government described in the Constitution. Either this will change, or we will lose our freedom as citizens. McConnell reads tea leaves, perhaps, and sees reason for optimism on this issue:

Tenth Circuit judges do not have many opportunities to rule on the scope of executive power, but arguably this will be the most prominent Supreme Court issue of the coming decade. Not only will there be high-profile contests involving the ever-controversial President Donald Trump, but there will be even more cases involving the ever-increasing authority of bureaucratic agencies to govern our lives without congressional say-so or real democratic accountability.

As it happens, Neil Gorsuch has addressed this question, albeit obliquely.

Awfully obliquely, in my view. You can read the whole thing and judge for yourself.

It seems clear that Neil Gorsuch is superbly qualified for the Court, not only by training and experience but by temperament. Conservatives would be happy if the entire federal judiciary consisted of apolitical judges like Gorsuch, who will apply what the law says to the case before them, rather than twisting it to achieve political ends.

The problem is that our judiciary is littered with judges who don’t do that–who, rather, act as ideologues rather than judges in high-profile cases. All four liberal justices on the Supreme Court are in that category. In any politically-charged case, they can be counted on to vote as a bloc in favor of the Democratic Party’s position. There is no similarly reliable bloc on the right. As a Supreme Court justice–his confirmation seems a foregone conclusion–Judge Gorsuch will continue that tradition. He may be a conservative, but he will not be a conservative justice in the same way that Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan are liberal justices.

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