This is the third 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. This third part quotes 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. The 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.
The Senate Judiciary Committee conducted a four-day hearing on whether the Senate should confirm the nomination of Judge Neil Gorsuch, of the U.S. Court of Appeals for the Tenth Circuit: March 20 (opening statements), March 21 and 22 (question-and-answer of the nominee by the Senators), and March 23 (testimony by other witnesses), 2017. The Committee voted 11-9 on April 3 on a straight party vote. (The full Senate voted 54-45 on April 7 in favor of the nomination.)
Like all seven Democratic senators, the nominee, Tenth Circuit Judge Gorsuch, had attended college; his was Columbia. Like five of them, he had majored in political science. Like a different set of five of them, he had graduated from law school; his was Harvard, graduating in the same class as Barack Obama. Judge Gorsuch’s views, and the Democratic Senators’ views, on the rule of law, equal justice under law, an independent judiciary, the impartiality of a judge, could not be more different.
As noted in Part 1, the vast majority of the American people would not have viewed the long proceedings, most of which occurred during working hours. They may have seen or read snippets. While the videotape is publicly available, viewing it is not an efficient use of time.
These quotations are ordered by day, not subject, and by questioner (always in the order of seniority on the Judiciary Committee).
MARCH 20 (from his opening statement)
If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will.
In my decade on the bench, I have tried to treat all who come to court fairly and with respect. I have decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of nuclear waste pollution by corporations in Colorado. I have ruled for disabled students, prisoners, and workers alleging civil rights violations. Sometime, I have ruled against such persons too. But my decisions have never reflected a judgment about the people before me—only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.
In response to Sen. Hatch:
[The judicial role] is a limited, but vital role in our separated powers. A judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law. It is chiseled above the Supreme Court entrance in…marble…That is a profound and radical promise, that every person is protected by our laws equally, and in all of human history, that may be the most radical promise in all of law.
And what it means to me is that, when I sit on the bench and someone comes to argue before me, I treat each one of them equally. They don’t come as rich or poor, big guy or little guy. They come as a person and I put my ego aside when I put on that robe and I open my mind and I open my heart and I listen. And I tell my [law] clerks [who assist me] that their very first and most important job is to tell me I am wrong and to persuade me I am wrong as I read the briefs and listen to the arguments. And then if they manage to do that, I tell them their next job is to try and persuade me I’m wrong again because I want to make sure I leave no stone unturned. I want to get to the bottom of it. I have one client. It’s the law. And it’s a great joy and it’s a great privilege and it’s a daunting responsibility to come in every day and to try and get it right. Then I go listen to the arguments of the lawyers, I don’t treat them as cat’s paws. They’re not there to be toyed with. I treat them, I hope, always, as respected colleagues who [have] lived with the arguments, studied the cases, know the facts far better than I do…
I might actually learn something from them. I go in with the questions I actually have that I want answered, and then I sit and I listen to my colleagues after that. And, Senator Hatch, I can’t tell you how many times on the Tenth Circuit I’ve gone through that whole process, I go to conference, I think I know my mind, and then one of my colleagues -- Harris Hartz was here yesterday, he’s often the one, there are plenty of others -- who say something absolutely brilliant, changes my mind. And that’s the judicial process and that’s the role I see for the appellate judge…
One of the hard things about being a judge is that somebody has to win and somebody has to lose. You make half the people unhappy 100 percent of the time…
According to my law clerks, again when I do dissent, which is very rarely -- I do so in about equal numbers between judges who happen to be appointed by Democratic presidents and who happen to be appointed by Republican presidents --and I hate to even use those words because they are all just to me judges; I don’t think of them [in] that way. But my decisions have always been independent regardless of who I’m agreeing or disagreeing with, and if I ruled against the government, my goodness, ask the U.S Attorney’s Office in Colorado -- I give them a pretty hard time. I make them square their corners, Senator Hatch, all right. And if you wanted some examples I’d point you to… three recent Fourth Amendment cases, ruling for the accused, the least amongst us, against the government.
In response to Sen. Leahy:
My job as a judge is to treat litigants who appear in front of me as I wished to be treated when I was a lawyer, with my client, large or small. I didn’t want them discriminated against because they were a large company or a small individual with an unpopular belief. I represented people fighting class actions. I’ve ruled against class actions and I’ve ruled for class actions. And in each case, it depends upon the facts and the law presented to me.
In response to Sen. Grassley:
I have offered no promises on how I’d rule in any case to anyone and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking. And I don’t because everyone wants a fair judge to come to their case with an open mind and decide it on the facts and the law.
I could talk to you about the factors that a good judge considers in analyzing precedent and the weight due a precedent, but I’m not in a position to tell you whether I personally like or dislike any precedent -- that’s not relevant to my job… Precedent is kind of like our shared family history as judges. It deserves our respect because it represents our collective wisdom, and to come in and think that just because I’m new or the latest thing and know better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role.
In response to Sen. Feinstein:
[Referring to a particular case under the Administrative Procedure Act (the APA) involving an immigrant named Gutierrez:] Can a man like Mr. Gutierrez, the least amongst us, be able to rely on judicial precedent on the books or can he have the ball picked up as he’s going in for the kick?
In response to Sen. Durbin:
I try to treat each case, and each person, as a person, not a “this kind of person,” not a “that kind of person” -- a person. Equal justice under law is a radical promise in the history of mankind.
In response to Sen. Cornyn:
[In the context of the same APA case, Gutierrez, mentioned above] When I was a lawyer, all I wanted was a judge who put all of his personal things aside, her personal views and come to the law and the facts in each case fairly.
[W]hen we’re talking about interpreting the law, there is no better place to start than the text. Maybe here I have to blame Sister Mary Rose Margaret. She taught me how to read and she taught me how to diagram a sentence. And it was under pain of the hot seat paddle which hung above her desk for all to see.
Well you say, she could teach a monkey how to read. I think she did, me. And I think that’s where we want to start for a couple of reasons with the text of the law. First we go back to the due process considerations, the fair notice considerations, we spoke of earlier.
Before I put a person in prison, before I deny someone of their liberty or property, I want to be very sure that I can look them square in the eye and say, “You should have known, you were on notice, that the law prohibited that which you’re doing.”
I don’t want to have him to say “How am I supposed to tell? I need an army of lawyers to figure that out.” Some people can afford armies of lawyers, most Americans can’t. It’s a matter of fair notice and due process.
In response to Sen. Lee:
[Sen. Lee’s question: As a judge, do you have any bias that you can detect? How do you approach a case? Do you look at a case and say, this person is well represented and powerful, this one is less well represented and not powerful? Does that influence how you approach the law in any case?]
Senator, you try to treat each person as a person. We’re all just people at the end of the day, and that equal justice promise, equal protection under law, is the most radical guarantee I’m aware of in the history of human law -- the recognition that no one is better than anyone else… These are the facts of my record: 97% of the time out of 2,700 cases, we [the three-judge panels in which I have participated] ruled unanimously; 99% of the time, I’m in the majority. According to the Congressional Research Service, as I understand it, of the judges studied in the Tenth Circuit, my opinions attract the fewest dissents. They’re not sure whether it’s because I seek consensus or because I’m persuasive. I don’t care which it is.
My law clerks tell me as well that I’m as likely to dissent from a Democrat as a Republican-appointed colleague…
When I was a lawyer, I just wanted to go into court and have the judge hear my client, hear them, really hear them, as a person on the facts and the law and leave everything else alone, at home where it belongs. Now that’s hard. I’m not here to tell you it’s easy and I’m not here to tell you I’m perfect. OK? I’m a human being. I’m not an algorithm but I try really hard, and it’s almost like an athlete. It’s something judges practice and hopefully we get better at it with time.
In response to Sen. Cruz:
No one is looking to take us back to the horse and buggy days or quill pens or to turn back the clock on anything. The point is to apply the law in a way that allows us to be able to say as judges, “It’s not what we wish; it’s what the law was understood to mean.” [The words of the law have] a fixed meaning, as [James] Madison said [about a] “canon of construction” [that is, how a text is to be construed]: that the Constitution should have a fixed meaning. Right? And the judges may disagree over what that is. We disagree once in a while. Not as often as some would like to portray. Once in a while. But our disagreements are not political disagreements. They’re disagreements over what the law is. And that – that’s very important to me.
And the other thing it does is -- it’s a due process value. We’re interpreting the law in a way that we can charge people with notice of because we’re judging them for their past conduct.
People lose their liberty, their property on the basis of our interpretations of the law. And it seems to me that it should only be fair that their interpretations we can charge them with [having] notice.
In response to Sen. Flake:
I do recall when Chevron [a Supreme Court decision on the deference paid by courts to the expertise of administration agencies when they interpret ambiguous law] was announced, many people thought it was a very conservative decision because it does advantage whoever has their hands on the reins of the administrative state at the particular time. And in 1984, that was one party. Today, you know, it may be another party and the next day it may be another party.
So a good judge doesn’t care who it advantages, a good judge looks at the law.
In response to Sen. Blumenthal:
I take the parties as I find them, and I take the facts and laws that come to me. And I don’t choose when they come to me or how they come to me.
In response to Sen. Crapo:
I rule for the government sometimes, I rule for the accused, for the prisoner, for the immigrant, for the student, for the employee -- whomever -- it is based on the law and the facts of the particular case at hand…
[In the private practice of law] I represented plaintiffs, I represented defendants, I represented the big guy, I represented the little guy, however you want to call it. And in each and every case, all I wanted was a judge who didn’t decide the case based on his personal beliefs, her personal religion, his politics, what she had for breakfast. I just wanted someone to come in and look at the law and look at the facts, study it as hard as they could, and make as neutral and dispassionate judgment as they could. That’s what I wanted, a human judge, somebody who’s a person.
It helped if they were kind, but I’d take a curmudgeon. There were some curmudgeons. [A] fair curmudgeon any day of the week, I’d take. I wanted a fair judge and I resolved to myself that I would remember, so long as I was on the bench, I would remember what it was like to be in the well [as a lawyer addressing a judge sitting above on a “bench”], what it was like to have to make the arguments, because I’ll tell you what, asking the questions, [is a] lot easier than having the answers. I sleep a lot better the night before argument as a judge than I did the night before argument as a lawyer. And so I resolved I wanted to be the kind of judge that I wanted when I was a lawyer…
“Precedent” is our history, our shared history, our patrimony, the wisdom of the ages if you want to think of it that way, and it would be foolish of any judge to come in and think that he or she knows better than everybody who’s come before. That would be an act of hubris.
[Sen. Crapo’s question: The last issue I’ll ask you about is your thoughts, which you have already referenced somewhat, on overcriminalization in the law. Could you basically just reiterate that for us?]
Yes, Senator. You know, as I indicated earlier I think the number is something like 5,000 federal criminal statutes on the books today and hundreds of thousands in the Federal Register. You know, [they are published in an] eight point font, [so] I need to bring out my reading glasses [whenever] I pull open the Federal Register. And you know, I have a hard time reading it. And I have a hard time imagining the American people can read it…And [James] Madison warned about a world in which law, written law, is lacking. And he also warned about a world in which we’d have too much written law, [a] paper blizzard -- so much so that the prosecutor can choose his charges with impunity and the people don’t have notice, really, [of] what’s expected of them.
In response to Sen. Hirono:
There are plenty of cases where I’ve ruled for the employee and not the employer. We can pick one and talk about one. But there are many, many where I’ve ruled for the employee, even overturning the district court when the district court ruled for the employer. Lots of ’em…
To me, one of the beautiful things about our system of justice is that any person can file a lawsuit about anything against anyone at any time. Any person has access to our courts of justice on any subject, and a judge, a neutral and fair judge will hear it. I think that’s a remarkable thing. It doesn’t happen everywhere in the world…
I have worked to try and provide representation to individuals when I’ve seen pro se handwritten complaints [from people who don’t have a lawyer] that seem to me to have merit. I’ve appointed lawyers [to represent people] in those cases.
Spero News contributor 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.) Thunder 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).