- How to read last year’s Garland precedent? [David Post, Jonathan Adler]
- Gorsuch “consistently applied established First Amendment protections” [Adam Liptak, New York Times quoting Gregg Leslie of Reporters Committee for Freedom of the Press]
- We’ve earlier linked Cato podcasts on the nomination with Ilya Shapiro and Andrew Grossman and now here’s a somewhat more skeptical one featuring Ilya Somin;
- On product liability [Eric Wolff, Perkins Coie]
- California Federation of Teachers, explaining its opposition to the nomination, dismisses his constitutionalism as devotion to a document “drafted to protect the interests of white slave owners” (via Amy Alkon);
- “Follow the law, as judges are supposed to do, and you’ll get tarred as a supporter of criminals” when Nancy Pelosi et al. go low: [Eugene Volokh on gun cases U.S. v. Games-Perez and U.S. v. Reese]
“He’s a brilliant, terrific guy who would do the court’s work with distinction.” — Laurence Tribe.
“He’s immensely qualified for the Supreme Court — an outstanding lawyer, and judge, and person.” — Jack Goldsmith.
“The Democrats have to let somebody go through. And there is not going to be anybody more acceptable than him.” — Charles Fried.
“The single most qualified person” on Trump’s list of 21 potential nominees, a judge “who is smart and has integrity. This is a man of enormous achievements” — Richard Lazarus.
“”What struck me was his real, genuine reverence for the Constitution and the rule of law that came through on a daily basis, As a judge, he believes that cases should be decided on the basis of the law and not on the basis of policy or personal preferences. His judicial record shows he applies the law impartially.”
“He’s really a kind, genuine and decent man,” she said. “He’s a great boss and a great mentor for all clerks, including myself. Any clerk you speak to, would just speak glowingly and lovingly of him.” — Jane Nitze, who served in the Obama administration after clerking first for Gorsuch and then for Sonia Sotomayor (Gorsuch serves as a feeder judge for liberal as well as conservative Justices).
More here (Liz Mineo, Harvard Gazette). And for those who prefer a West Coast academic view, Prof. Michael McConnell — a rare conservative on the Stanford law faculty who formerly served as a judge alongside Gorsuch on the Tenth Circuit — in this appreciation at Hoover salutes Judge Gorsuch’s impartiality and devotion to constitutional principle:
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.
This is not just my opinion. In the days since the nomination, several liberal professors have studied his record and come to a similar conclusion.
- Germany will drop law against insulting foreign leaders, invoked by Turkey’s Erdogan [DW, earlier]
- Judge Neil Gorsuch’s opinions and writing draw praise from First Amendment specialists [Ronald Collins, First Amendment Coalition]
- “Hey, Google, deindex this whole article because one of the comments harms our reputation.” A tactic ripe for abuse, no? [Eugene Volokh]
- ABA model rule defining harassment as professional misconduct violates free speech, says Texas AG [John Mudd, Josh Blackman, earlier on Rule 8.4(g)here, here, etc.]
- “CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech” [Burt Rublin and Daniel Delnero, WLF]
- “On punching Nazis” [Ken at Popehat; “Der Fuehrer’s Face,” Spike Jones, 1943]
- Freedom of association is at risk from California’s effort to crack open donor names of advocacy nonprofits [Ilya Shapiro on Cato Ninth Circuit amicus]
- “Center for Class Action Fairness wins big in Southwest Airlines coupons case, triples relief for class members” [CEI, earlier here, here]
- Campus kangaroo courts: KC Johnson and Stuart Taylor Jr. have spent a week guestblogging at Volokh on their new book (first, second, third, fourth, fifth, earlier links; plus Christina Hoff Sommers and WSJ video interviews with Stuart Taylor, Jr.]
- Despite his I’m-no-libertarian talk, two 2015 cases show Judge Neil Gorsuch alert to rights of Drug War defendants [Jacob Sullum]
- Drug pricing, estate/inheritance double tax whammy, shaken baby case, mini-OIRA in my new Maryland policy roundup [Free State Notes]
- And the legal fees flowed like water: dispute with Georgia over water rights has clocked $72 million in legal bills for Florida [Orlando Sentinel]
- December Cato conference on criminal justice (Ken White, Harvey Silverglate, Hon. Shira Scheindlin, Kevin Ring, too many others to list) now online (earlier);
- Justice Scalia and criminal law: Federalist Society National Lawyers Convention panel with Rachel Barkow, Stephanos Bibas, Orin Kerr, Paul Larkin, Jr., and Hon. Stephen Markman (Michigan SC), moderated by Hon. David Stras (Minnesota SC).
- Nominee Neil Gorsuch and the criminal law [Andrew Fleischman/Fault Lines, William Patrick/Florida Watchdog, Kevin Ring, Eugene Volokh]
- Are you sure you want to prosecute drug overdoses as murders? [Scott Greenfield]
- “Three anonymous allegations of criminal activity within the past year” can result in eviction threat under NYC’s no-fault nuisance eviction law [Allie Howell, Economics 21]
- Think lawmaking was more rational in the old days? How panic in Congress brought us the 1986 drug law [Radley Balko]
- If your mission is truth-finding or criminal justice, “Start By Believing” is wrong approach [Eugene Volokh on campaign by Arizona Governor’s Commission to Prevent Violence Against Women] Two ethicists propose demoting standard of proof in U.K. rape prosecutions from beyond a reasonable doubt to preponderance of the evidence [Aeon via Community of the Wrongly Accused, which takes a different view]
Radley Balko urges civil libertarians, including those on the liberal side, to feel a sense of relief at the selection of Neil Gorsuch: “Trump has nominated a thoughtful judge who seems as likely to challenge inevitable future Trump power grabs as any justice on the court.” [Washington Post] Paul Karlsgodt of Class Action Blawg, who describes himself as a lifelong Democrat, says the high esteem for Neil Gorsuch in the Denver legal community cuts across ideological lines. As Chevron deference for the first time emerges as a popular national issue, here’s the point to keep in mind: “Gorsuch has favored an approach to administrative law that would limit President Donald Trump’s discretion and power.” [Jeffrey Pojanowski, CNN] On Gorsuch’s already-famous ruling in the burping-student case: “That does not sound like a judge who bends over backward to side with the government.” [Jacob Sullum] And Hilaire Belloc: “Always keep a-hold of Nurse/For fear of finding something worse.”.
SCOTUSBlog assembles a long list of reactions from left, right, and other places.
And the Cato podcast series with Caleb Brown has a double entry, the first interview being with Ilya Shapiro:
and the second with Andrew Grossman:
Judge Neil Gorsuch’s first call after being nominated was to Judge Merrick Garland, “out of respect.”
If there is a relationship of esteem between the two, it may have something of a history. In 2002, as a Washington litigator before his elevation to the Tenth Circuit, Gorsuch wrote a piece deploring how Senators had stalled the nominations to the D.C. Circuit of Garland and another nominee who was to become well-known:
…some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton’s solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving “hot-button” issues.
As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing — and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today’s confirmation process.
I am a big fan of the work of Tenth Circuit Judge Neil Gorsuch and was very happy that President Donald Trump picked him last night for the Supreme Court vacancy.
Writing in the Wall Street Journal, David Rifkin and Andrew Grossman first praise Gorsuch’s eloquent and humane style of opinion-writing, then get down to particular cases. Many are of interest to those interested in resisting excessive government power, especially when centralized in Washington:
…Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed….
Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.
What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.
The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.
Some more links:
- More background on the judge: Denver Post, Ramesh Ponnuru/NRO, Ilya Shapiro;
- He won Senate confirmation by voice vote in 2006 [hearings and related documents; floor debate]
- 11/9 Coalition on his civil liberties/Bill of Rights stands, including Fourth Amendment rulings;
- A key Gorsuch case on religious liberty: prison with sweat lodge for Native Americans broke the law by denying access to one inmate (Yellowbear v. Lampert). Extraordinarily clear and well written, the opinion also helps illustrate why Gorsuch, if confirmed, may fill Scalia’s place as the Court’s most talented writer.
- Everyone remember to switch positions on whether the Supreme Court is perfectly functional with eight members!
- Former Obama administration Acting Solicitor General Neal Katyal, in the New York Times (“Why Liberals Should Back Neil Gorsuch”);
- The judge in a 2008 dissent: don’t make it too easy to sue litigation experts who change their minds [our first, second Overlawyered posts]
- Just don’t tell anyone that he’s a Cato Institute author [Policy Analysis 1998, defense of term limits constitutionality]