This is the fourth part of a five-part essay. The first part described the Democratic Party’s vision for the American judiciary, using the language of the Democratic members of Senate Judiciary Committee during the 2017 confirmation hearings of Judge Neil Gorsuch as Supreme Court justice. The second part described how the Democratic Party’s vision of “identity justice” has played out in judicial systems in other countries. The third part quoted Judge Gorsuch’s opening statement on March 20 and his March 21 responses during his confirmation hearings in which he rejected the Democratic vision while affirming the rule of law, an independent judiciary, and his judicial oath to support the United States Constitution. This fourth part uses his March 22 responses and his March 24 responses to written questions. The fifth part will describe Judge Gorsuch’s work to change the law in favor of the “little guy,” efforts ignored by the Democrats.
In response to Sen. Grassley:
Before you could put a man in prison, I think for five years in that [particular] case…the government should be forced to prove each and every element that the plain language of the statute imposed upon it. [T]o put a man in prison on the basis of legislative history rather than the plain language [of the law] struck me as a due process – a fair notice -- problem to that individual.
. . .I think notice is the key to the rule of law; that the people can understand what’s expected of them, that the law is sufficiently clear, that before they’re put in prison for five or 10 or 20 years…on the basis of some secret law, some hidden unexpressed intentions, or intentions that are very hard to find in the fine print of some book that’s not available widely.
In response to Sen. Feinstein:
Does the government have to prove what the law requires?…The big guy, there’s no bigger [guy] than the federal government.
In response to Sen. Cornyn:
I take seriously that we charge people with notice of the law…Generally speaking, ignorance of the law is no excuse. We assume that it is reasonable for the people to be on notice of all 5,000 federal criminal laws that this body has passed. Is it also reasonable to expect them to know all the floor statements [statements made by Senators and Representatives on the floor of the Congress] that have been issued about the law? Everything that might have been entered into the [congressional] record, but not discussed, by unanimous consent?
In response to Sen. Durbin:
[Sen Durbin: “Judge, in eight out of ten cases that came before you, you ruled against the students with disabilities.”]
Nominee Gorsuch: I’m sure they were unanimous panels…All I can say is what I’ve said to you before, which is [that the decision was] an unanimous panel of the Tenth Circuit, following 10 year old Circuit precedent, [and included a] Democratic colleague…[To] suggest that I have some animus against children, Senator, would be a mistake.
In response to Sen. Whitehouse
[Sen. Whitehouse re: Citizens United case. That case is one “of the reasons why all three of the major commentators on the Supreme Court have basically described [the Court] in the modern age now as instruments of the Republican Party, and I think it also is why the majority of Americans looking at the Supreme Court think they won’t get a fair shake there against a corporation. In fact, 36% -- more than a third – think that the Court will be much more favorable to a corporation than to a person.]
Nominee Gorsuch: I’m distressed to hear you think that judges of the Supreme Court are an organ of a [political] party…I think the rule of law in this country works and it works so well that to speak like that diminishes what we have and – and it is, for me, a failure to appreciate the beauty of our system, that we resolve hundreds of thousands of cases a year -- almost always unanimously…
In response to Sen. Klobacher:
There’s not a single right answer to every case. I will concede you that. But that doesn’t mean just because there isn’t a single foreordained answer from God in every legal dispute that judges aren’t trying to look at the legal materials, and only the legal materials, and try to make sense of the legal materials and that alone, and leaving the rest of the stuff aside. That’s been my experience of good judges. They leave their moral convictions, their views about social utility, whatever it is, whatever they ate for breakfast, over there. They take the briefs, they take the law, they take the facts, they take the Constitution, they take the precedents, they take the original understanding [of the text of the law] – and they try to make sense of it, as a judge does.
In response to Sen. Franken:
…I’m a big believer in jury trials and the Seventh Amendment. And in the Rules Committee [the Advisory Committee on the Federal Rules of Civil Procedure] over the last six years, I’ve worked with my colleagues to try and make litigation cheaper, faster, and more accessible so that people can vindicate their jury trial rights. [We have] a proposal with a wonderful judge from the Ninth Circuit currently pending before the Rules Committee, asking if we can actually reverse the presumption because, right now, when you file a claim in federal court, if you don’t specify [you want a] jury trial, your jury trial right…goes away. And you’re presumed to want a bench [non-jury] trial. I don’t understand that presumption.
In response to Sen. Sasse:
[Entering into the record a letter from some of the nominee’s law students regarding a prisoner without a lawyer. The letter reported that Judge Gorsuch had asked a student:] “Where are the responses to the prisoner’s arguments?” I told him that I didn’t see the need to address those because they were so weak…Judge Gorsuch responded [to the student], “We owe this man the kindness of stating his arguments as fairly as we can and then responding with clear answers in plain English. We owe him the kindness of explaining to him in a way that he can understand why he lost the case. Ruling against this man does not relieve us of our obligation to show him that kindness.”
MARCH 24 WRITTEN QUESTIONS
In response to Sen. Franken’s written questions:
During the hearing, I mentioned findings suggesting that approximately 80 percent of the members of the American College of Trial Lawyers report that pretrial delays and costs keep injured parties from bringing valid claims to court and about 70 percent of members say that cases are settled on the basis of litigation costs rather than the merits.
In response to Sen. Hirono’s written questions:
As we discussed, in the Law of Judicial Precedent, my colleagues and I expressed a mainstream consensus view, representing the work of judges from around the country appointed by Presidents of both parties, about the application of judicial precedent. As outlined in that book, judges consider a number of factors in analyzing precedent.
I took an oath to administer justice without respect to persons, to do equal right to the poor and to the rich, and to perform faithfully and impartially all of the duties incumbent upon me as a judge under the Constitution and laws of the United States. I take that oath seriously, and respectfully suggest my record demonstrates that fact. My record shows that, according to my clerks, 97 percent of the 2,700 cases I have decided as a judge were decided unanimously, and I have been in the majority 99 percent of the time. In those rare cases where I have dissented, my clerks report that I was about as likely to dissent from a judge appointed by a Republican as I was to dissent from a judge appointed by a Democrat. According to the Congressional Research Service, I understand that my opinions have attracted the fewest dissents of any Tenth Circuit judge it studied. That is my record as a judge based on ten years on the bench.
I am a strong believer in the federal judiciary. I know many of the men and women of the federal judiciary, and I have witnessed first-hand how hard they work to perform their responsibilities with integrity every day. Those judges come from different walks of life, different experiences, but they agree overwhelmingly on the disposition of cases. They decide cases based on the facts and law and not based on their personal beliefs. Only a tiny fraction of cases heard in the federal courts ever go to the Supreme Court because the lower courts agree on the legal principles that apply. Even at the Supreme Court, the Justices agree unanimously about 40 percent of the time. The overwhelming unanimity in the federal courts—indeed, the strength of the rule of law in this country—is something of which we should all be proud.
In response to Sen. Leahy’s written questions:
[Sen. Leahy: Question 9. You are a proponent of the view that the Constitution should be interpreted based on the original public meaning of its text. When faced with a case where precedent points clearly toward one outcome, but your understanding of the Constitution’s original public meaning points in the opposite direction, which side wins?]
[Nominee Gorsuch:] As we discussed, precedent is the anchor of the law. In the Law of Judicial Precedent, judges from around the country appointed by Presidents of both parties and I offered a mainstream account about the law of judicial precedent. As outlined in that book and as we discussed at the hearing, judges consider a number of factors in analyzing precedent such as the age, reliance interests, and workability of the precedent. In assessing any case, a good judge starts with a presumption in favor of precedent.
Addendum: Masterpiece Cakeshop v. Colorado Civil Rights Commission
Permit me to quote the concurring opinion of Justice Gorsuch in this June 4, 2018, opinion on the case of a baker, Mr. Phillips, who had refused to bake a cake to celebrate a same-sex wedding. As it turns out, the government agency that initially ruled on the complaint had ruled in favor of a baker who had refused to bake for a customer, Mr. Jack, a wedding cake critical of same-sex marriage. Justice Gorsuch addressed the “identity justice” wrought by the government agency:
[T]he [Colorado Civil Rights] Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.
Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer…[The Commission cannot alter its mode of analysis in the two cases] based solely on the identity of the parties…engi¬neer[ing] the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. [bold-face added]
Spero News columnist James M. Thunder is an attorney with Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C. (Supreme Court Justice Gorsuch practiced with the firm 1995-2005.) He has authored over 200 items including several law review articles. He was the editor of the seven-volume U.S. DEPARTMENT OF JUSTICE MANUAL (1977), the co-author of FEDERAL CHEMICAL REGULATION (BNA 1997), and a major contributor to K. Chris Todd, ed., 225 YEARS (1789-2014): THE UNITED STATES ATTORNEYS FOR THE SOUTHERN DISTRICT OF NEW YORK (2014). This article is part 4 of a 5-part series. Stay tuned for part 5.