This is the fifth part of a five-part essay. The first part described the Democratic Party's vision for the American judiciary, using the langu ...
Friday, July 20, 2018
This is the fifth 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 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. The fourth part used his March 22 responses and his March 24 responses to written questions. This fifth part describes Judge Gorsuch’s work to hugely change the law in favor of the “little guy,” efforts ignored by the Democrats.
Despite my lengthy excerpts of Judge Gorsuch’s testimony in Part 3 and Part 4, my intent has not been to focus on a particular nominee for the federal judiciary, but on the alternative to the Democratic vision for the American judiciary. Since that vision of “identity justice” was consistently espoused by the Democratic Senators during the Gorsuch confirmation hearing, it seemed appropriate to consider Judge Gorsuch’s statements, in the same time and place, as a counter. In this Part 5, I go a step further. The vision of the Democratic Senators made them blind and deaf to the record -- of the very man in front of them -- seeking to change the law in favor of the “little guy” they claim to champion. Moreover, while the subjects Judge Gorsuch addressed are within the jurisdiction of the Senate Judiciary Committee, the Democrats of that very Committee showed no interest.
You will no doubt remind me that Judge Gorsuch did not appear before the Committee as a lobbyist in behalf of these ideas. Indeed, that is true. Nonetheless, the Democrats argued that he lacked empathy for the “little guy,” so he was entitled to rebut them. And when he did so using proposals he had made prior to his nomination, they could have explored these topics -- or at least have said that the Committee would look at them at a later time. They did neither.
Here are three of nominee Gorsuch’s statements on access to justice by the “little guy” as quoted by me in Parts 3 and 4:
…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…
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 answer to 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.
Here is an excerpt from the testimony that I had not included in Parts 3 and 4:
March 21, in response to question from Sen. Crapo:
When it becomes so expensive and takes so long to get to a jury, to get to a trial, some people don't bring good claims. A lot of people are left not bringing good claims to court…[It’s a problem for plaintiffs, and] defendants sometimes…feel like [they] have to settle, not because the case has merit, but because the cost and the delay…are so significant…As I indicated earlier, the American College of Trial Lawyers [who represent both plaintiffs and defendants] have indicated both of these problems are real in our system and need to be addressed.
1. Proposal to Enhance the Constitutional Right of a Plaintiff in a Civil Case to a Jury
Nominee Gorsuch mentioned in his testimony his proposal, made as a judge on the Tenth Circuit, to enhance the constitutional right (under the Seventh Amendment to the U.S. Constitution) to a jury in civil cases, that is, non-criminal cases. Currently, a plaintiff must file a written demand for a jury and, if the plaintiff does not, his or her right to a jury trial is deemed waived. Here is Judge Gorsuch’s proposal, dated June 13, 2016: Memorandum from Judges Neil Gorsuch and Susan Graber to Judges Jeffrey Sutton, David Campbell, and John D. Bates, June 13, 2016, re: Jury Trials in Civil Cases in Agenda Book, Committee on Rules of Practice and Procedure, Jan. 4, 2017, pp 73-74, http://www.uscourts.gov/sites/default/files/2017-01-standing-agenda_book_0.pdf
2. Ensuring that People Have Notice of Law Before Being Deprived of Life, Liberty or Property
On April 17, 2017, Associate Justice of the U.S. Supreme Court Neil M. Gorsuch filed a written opinion in which he concurred with Justices Kagan, Ginsburg, Breyer and Sotomayor (those Justices regarded as “progressives”), against Justices Roberts, Kennedy, Thomas and Alito and against the U.S. Government in Sessions v. Dimaya. https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf. The opinion is 19 pages in length – but that should not deter you from reading it since it is in large print with hefty margins.
Justice Gorsuch’s opinion reflects the views on fair notice and due process that he described in his confirmation testimony. He began the opinion with: “Vague laws invite arbitrary power.” He elaborates that vague laws are an unconstitutional delegation by the legislature to both the executive and judicial branches of government.
3. Proposal to Allow People to Major in Law in College, Dropping the Requirement That They Attend Law School
On the afternoon of March 21, nominee Gorsuch made one short allusion to his proposal to drop the requirement that, in order to take a bar examination to practice law, a person must have a college degree. He had proposed this as early as November 15, 2013, when he delivered the Barbara Olson (killed on 9/11) Memorial Lecture to the Federalist Society, available online .
While he made only passing reference to his proposal in that Lecture, he wrote an article that included this proposal in Judicature (Duke Law Center for Judicial Studies), vol. 100, no. 3, Autumn 2016, pp. 46-55, available online.
This was “originally presented at the United Kingdom-United States Legal Exchange in London, England, in September 2015.” In his essay, Judge Gorsuch referenced the “skyrocketing costs of legal education,” up to $200,000, on top of the costs of a college degree. “Increased debt loads reduce students’ incentives and ability to take on lower-paying public service or ‘main street’ legal jobs.” The states of this country did not always require either a college or law school education, but still produced outstanding lawyers and judges. And, he writes, the United Kingdom currently requires a three-year undergraduate degree in law or a one-year graduation course.
In a 2014 book, I contributed to the publication of the biographies of the 59 men and one woman who have served since 1789 as U.S. Attorneys for the Southern District of New York (Manhattan). K. Chris Todd, ed., 225 YEARS (1789-2014): THE UNITED STATES ATTORNEYS FOR THE SOUTHERN DISTRICT OF NEW YORK (2014). I am familiar with the formal and informal education of these outstanding lawyers, many of whom did not attend college or did not attend law school. So, I would go Judge Gorsuch a step further. I would allow anyone, of any age, of any educational background, to take the basic courses in law (Contracts, Torts, Property, Legislation, Criminal Law, Criminal Procedure, Civil Procedure) online as a MOOC (massive open online course) and take them free, paying for their books.
In fact, Judge Gorsuch cited in his essay (p. 48, col. 2), in a different context, the acknowledged brilliance of Marcus Arnold, a high school graduate, in answering legal questions on a website. The students of law using MOOC courses could study on their own time at their own pace. They could choose, or not choose, to participate in online or offline study groups. They could hire, or not hire, tutors. At a time of their choosing, they could sit for examinations in these subjects, for a fee. (How those who do well on these examinations would interact with law school and bar examinations can be explored.)
Surely the Democratic Senators, even those who were law school graduates, could find the lowering of the educational and financial barriers to the practice of law beneficial to people who desire legal help at affordable prices.
My one objection to Judge Gorsuch’s proposal, and to my own, is that the resulting lawyers and judges would not be required to have broad learning. But, then, where has the broad learning of the Democratic Senators – that I itemized in Part 1 – brought us? These men and women espouse a vision for the American judiciary inimical to the U.S. Constitution.
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 5 of a 5-part series. See Part 1, Part 2, Part 3, and Part 4.