It always seems a bit futile to speculate about how a Supreme Court nominee will behave down the line. Conservatives are still kicking themselves over David Souter. Eisenhower called Earl Warren the biggest mistake of his career. I personally was skeptical of Sonia Sotomayor’s history as a prosecutor and her judicial record on criminal-justice issues. She has turned out to be the court’s most reliable defender of due process and the rights of the accused.
But, of course, we do need to look into nominees, and their records and personal histories are all we have. So let’s have a civil liberties-centric look at Neil Gorsuch, President Trump’s nominee to replace the late justice Antonin Scalia.
The Good: As far as I’m concerned, the most important thing to look for in a Supreme Court justice right now is a willingness to stand up to executive power. For at least the next four years (in all likelihood), the White House will be occupied by a narcissist with a proclivity for authoritarianism. We aren’t yet two weeks in to Trump’s administration, and we’re already barreling toward one or more constitutional crises. Oddly and perhaps in spite of himself, of the three names said to be on Trump’s shortlist (Gorsuch, Thomas Hardiman and William Pryor), Gorsuch appears to be the most independent and has shown the most willingness to stand up to the executive branch. Here’s President Obama’s acting solicitor general, Neal Katyal, in the New York Times today:
In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.
In a pair of immigration cases, De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch, Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers.
A proven record of standing up to the executive branch when it oversteps its authority on immigration — that seems pretty important and relevant right now.
Katyal’s passage above also references the Chevron deference, a doctrine under which the courts defer to regulatory agencies’ interpretations of law unless those interpretations are unreasonable. Gorsuch has been critical of the doctrine. As a libertarian, I think that’s generally a good thing. The deference is premised on the notion that the executive is more subject to democratic checks — if we don’t like the policies of one president, we can vote in a new one. But the non-political regulatory agencies can still wield a lot of power, and the courts ought to serve as a check on them. But even progressives who might be troubled by Gorsuch’s skepticism of deference to regulatory agencies should keep in mind that we’re now in the Trump era. Not only will Trump be staffing those agencies and setting policy for them, but also he’s more likely than any recent president to staff them with appointees with little respect for previous norms. Recall that during the transition, Trump’s team rather forebodingly asked regulatory agencies for lists of careerists who work on issues such as climate change. Moreover, while progressives may be worried by what Gorsuch’s skepticism of the Chevron deference means for agencies such as the Environmental Protection Agency or the Food and Drug Administration, his record shows that of a judge willing to apply it to an agency such as the Department of Homeland Security. Again, that’s important right now.
His skepticism of executive branch power extends even to third-rail criminal-justice issues such as sex crimes. From CNN’s write-up of Gorsuch’s key rulings:
In this [United States v. Nichols], in a dissent from the full 10th Circuit’s refusal to rehear a three-judge ruling with which he disagreed, Gorsuch strongly objected to how much regulatory power a federal statute — the Sex Offender Registration and Notification Act (SORNA) — gave to the Justice Department to apply its rules to those guilty of sex crimes predating the act’s enactment.
In his words, “the framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the Executive but essential to the preservation of the people’s liberty …
On the Fourth Amendment, Gorsuch’s record is also encouraging, particularly for a nominee from a president with Trump’s blustery law-and-order rhetoric. Despite his reputation, Scalia was often very good on the Fourth Amendment. Gorsuch’s limited record at least suggests that he’d continue in that vein. In United States v. Carlos, he wrote a dissent to a majority opinion holding that police did not violate a suspect’s Fourth Amendment rights by approaching and knocking on his door despite several “No Trespassing” signs prominently posted on the property. Reason’s Damon Root writes of Gorsuch’s opinions in these cases:
Gorsuch demonstrated admirable and reassuring judgment in these cases. Not only did he cast a principled vote against overreaching law enforcement, he cast a principled vote against the overreaching executive branch. It’s not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration.
In United States v. Ackerman, Gorsuch argued that when the National Center for Missing & Exploited Children searched a man’s laptop, it was acting as a government agent. Even though the search turned up child pornography, Gorsuch found that search unconstitutional.
Gorsuch is perhaps most known for his decision in the Hobby Lobby case, in which he wrote a strong opinion denouncing the birth-control mandate in the Affordable Care Act. Whether you think that’s a plus or a minus obviously depends on whether you prioritize reproductive rights or religious freedom. But even if you’re bothered by his opinion in that case, Gorsuch’s championing of religious freedom does at least seem to be careful and principled, and not partisan toward Christianity. In Yellowbear v. Lampert, a majority of his fellow appeals court judges ruled that a federal statute required the state of Wyoming to grant a Native American prisoner access to a sweat lodge on prison grounds. Gorsuch went farther, arguing that even prisoners still retain a right to practice their religion.
Gorsuch is a critic of “overcriminalization,” or the massive and growing federal criminal and regulatory codes. I think that’s a good thing. The Volokh Conspiracy’s Ilya Somin points out that he has history of ruling that criminal laws should be read narrowly, with ambiguities resolved in favor of defendants. That, too, is a good thing.
I was also struck by Gorsuch’s acceptance speech. It was noticeably un-Trumpian. He was humble, reverent of institutions and deferential to the office for which he had just been nominated. Unlike the man who nominated him, he came off as someone devoted to law, not someone who believes he is above it.
The Bad: Gorsuch wrote an entire book laying out the case against assisted suicide, so it seems pretty certain where he’ll be should any such cases come before the court. The court has already upheld a state law allowing for assisted suicide in Gonzalez v. Oregon, but as Somin points out, Gorsuch doesn’t seem to be all that committed to federalism. (Despite his reputation, neither was the man he’d be replacing.)
Given that the book is argued from a pro-life perspective, it seems likely that Gorsuch would affirm Trump’s explicit and unprecedented promise to conservatives that he’ll nominate only antiabortion judges. Gorsuch’s record on actual abortion cases is thin, but we can probably presume that he’d vote with Clarence Thomas, Samuel Alito and John Roberts. That would keep the court unchanged on abortion rights.
Somin also points out that Gorsuch is skeptical of judicial review. Despite his support for judicial scrutiny of regulatory policy, Gorsuch has argued that judges should strike down actual laws only in extraordinary circumstances. Like Somin, I find that troubling. As Congress increasingly passes laws in ways that keep the public as ignorant as possible about what those laws actually do, judicial review is more important than ever.
Gorsuch also has generally favored granting qualified immunity to police officers when they’re sued for alleged constitutional violations. Here, he’s no different from most other federal judges, and he has at least on occasion strayed, such as when he strongly argued against affording qualified immunity to a police officer who cuffed and arrested a 13-year-old for burping in class. But we need more judicial accountability for abusive cops, not less.
Over at the Marshall Project, Andrew Cohen notes that Gorsuch hasn’t been kind to inmates seeking relief in death penalty cases, either. Federal law has made post-conviction appeals in death penalty cases next to impossible, so perhaps it’s of little surprise that a textualist such as Gorsuch wouldn’t find much room for defendants here. As Eric Citron writes at SCOTUSblog, here in particular, Gorsuch wouldn’t be much of a departure from Scalia at all: “It is clear that Gorsuch’s position in death penalty cases is likely to be quite close to Scalia’s, and very unlikely to make the court any more solicitous of the claims of capital defendants.”
At the Michigan Law Review, Leah Litman looks at a Gorsuch opinion in a somewhat involved sentencing case and concludes that it raises some troubling concerns about his preference for procedure over substantive rights, a theme we explore often here at The Watch. And at BuzzFeed, Chris McDaniel notes that Gorsuch joined an opinion that rather callously characterized the horrifyingly botched execution of Clayton Lockett as “an innocent misadventure.” (We now know that when it comes to execution protocols, Oklahoma officials’ efforts to conceal and deceive have been far more gratuitous than mere “misadventures.”
The Politics: There are a lot of important areas where Gorsuch has no record at all. Some of these issues are especially critical right now, including press freedom, free expression and the right to protest, various “war on terror” issues and forensics issues such as the confrontation clause and ongoing disputes over Daubert analyses.
Gorsuch could, of course, deviate from his record in any number of ways once he’s on the court. But all told, my own feeling is that this is a surprisingly good pick from Trump. The general sentiment around Washington is that Trump basically outsourced the job of picking a nominee. That seems about right. If Trump had really been paying attention or had the capacity to really research his pick, it seems doubtful that the president we’ve seen over the past 12 days would have chosen someone so skeptical of executive power or that the guy who campaigned on law and order would have chosen a judge with Gorsuch’s history on the Fourth Amendment. Not only is this a pick that could have been made by an alternative-universe President Marco Rubio or President Mitt Romney, it would have been an encouraging, good pick from them, too.
There is, of course, the matter of Merrick Garland. Progressive activists are pushing Democrats to block Gorsuch at all costs, not because of his record, but because of the Republicans’ unprecedented denial of even a vote for Garland last year. I’ll just state before going any further that I think Republicans’ behavior with respect to Garland was unconscionable, as was Mitch McConnell’s promise to also block any nominees should Hillary Clinton win the election. It was a gross violation of democratic norms.
That said, this doesn’t seem like the time to revisit that fight. Trump has nominated a thoughtful judge who seems as likely to challenge the inevitable future Trump power grabs as any justice on the court. The added bonus here is that should it come to that, Trump would be opposed by his own nominee.
One can certainly understand the desire for retribution. But a protracted battle here would be counterproductive. On many issues, including most of those we cover here at The Watch, Gorsuch’s record suggests that he’d actually be to the left of Garland. He’s certainly better than the other “finalists” Trump was considering. Moreover, approving Gorsuch would give the Democrats added credibility down the line should they need to oppose Trump’s replacement of, say, Ruth Bader Ginsburg, Stephen Breyer or Anthony Kennedy — or should he nominate someone far more troubling, like Pryor. Adopting the GOP line of opposing all Supreme Court nominees from the opposing party at all times won’t win over fence-sitters, and it also isn’t likely to be successful.
I think Trump presents a unique threat to American democracy. In fact, I think there’s small but not insignificant risk that he represents the end of American democracy. (If that sounds like hyperbole, remember that his top adviser Steve Bannon has compared himself to Lenin.) In that context, Gorsuch is something of a gift — although probably an unintentional one.
An opposition party should choose its battles carefully. Over the past several days, tens of thousands of people have taken to airports, streets and congressional offices to protest Trump’s odious immigration order and the reckless manner in which it was carried out. Draft orders leaked by the administration this week are more frightening still. I can’t say for certain that Gorsuch thinks those orders are unlawful, but he does have a history of ruling against the executive overreach in immigration cases. The Post reported yesterday that Jeff Sessions not only helped plan Trump’s first week in office but also wanted Trump to go a lot farther — and is the “intellectual godfather” of some of the ugliest facets of Trumpism. If the Democrats are going to muster the will and political capital to tank a nominee and send the Trump administration a message, Sessions seems like a far better target.