This is a pretty great idea. A bunch of law libraries (including the one at my alma mater, I'm happy to say) compiled all of Judge Gorsuch's various publications and judicial opinions. This is far more likely to shed some light on his approach to the law than any confirmation hearing will. Since in my mind his confirmation is a foregone conclusion (and the hearings largely about allowing senators to posture).

One of my own personal bugaboos is qualified immunity, where a government official/employee has immunity from civil suits based on their on-the-job actions or decisions. This typically comes up in the context of police officers, either due to an allegedly improper arrest or due to complaints of excessive force. If an officer raises this defense, the plaintiffs must show that the officer's actions violated clearly established law.

Judge Gorsuch seems to take a fairly reasonable (IMO) approach, and thankfully is not as deferential to police as SCOTUS has tended to be. So, for example, in one case he said that an officer's arrest of a middle school student for disrupting class (no, really) was indeed outside the bounds of clearly established law, in light of some state court opinions that said that a statute on interfering with school operations required more than just a brief disruption of a single classroom. At the same time, he also said that a police officer did not violate clearly established law for tasing a fleeing suspect, after the suspect had run, climbed over a barbed-wire fence, and reached towards his pocket several times (even though the suspect died as a result).

He also said that he believed police officers could not just come and knock on your door if you have a No Trespassing sign up.

Sadly he joined the majority in Hobby Lobby, agreeing with his colleagues that for-profit corporations may exercise religion for First Amendment purposes. I think this is both legally wrong and bad policy, but I realize I'm kind of out on the weeds on this one. At the least, it's hardly a wildly out-there case.

In the only abortion-related case I could find, he argued that Planned Parenthood should have lost, but based his opinion mostly on the standard of review that was applicable, i.e. that they should have deferred to the trial judge on factual findings. This is indeed the usual standard.

Judge Gorsuch does seem to be very much into what the Founders intended, and has said in a couple places that judges must sometimes come to conclusions that they dislike. This case also gets into his view on separation of powers, and I find his argument compelling.

He also has some very good things (PDF) to say on the question of helping more people have access to proper legal services and representation. He's critical of attempts to stem low-cost alternatives via charges with the Unauthorized Practice of Law, suggests that non-lawyers should be allowed to invest in law firms (they currently can't in most states), had some reforms to civil procedure rules that make sense to me, and also recommended some ways to reduce the cost of law school. I would've liked to see him talk more about government services (such as the Legal Services Corporation that Trump is trying to destroy), but none of Judge Gorsuch's suggestions seem wildly out of bounds to me. In 2005, he offered a not unreasonable criticism for liberals' use of court challenges as a tool of policymaking. I especially liked this bit, even if I think he understates conservatives' role in the whole mess:

    At the same time, the politicization of the judiciary undermines the only real asset it has — its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.

Overall, he's a good writer, with some of the late Justice Scalia's acerbity but without seeming as mean-spirited or angry. He doesn't seem shy about expressing himself, to be sure: he makes it pretty clear in his dissent to the case about the middle school kid what he thinks of the decision to arrest the kid to begin with. He seems at least somewhat more consistent than Scalia did, although he's also too quick IMO to be okay with term limits despite the Founders' rejecting them due to changes in the nature of elections.

I don't pretend to be able to predict how he'll rule on any one thing, but I'm a lot less worried now than I was when I first learned of his nomination. He's certainly conservative in many respects, and has written articles (and a book) attacking right-to-die legislation, for example. I do worry that he'd be a vote against Roe (his statement about that being precedent for the Court notwithstanding), but that too is hard to predict. At the end of the day, we simply don't know what he'll do in any given instance, which is true for any nominee. I do agree with what he wrote about the over-politicization of the bench, and I think he's right in being wary of executive branch overreach. It obviously remains to be seen whether he'd be as skeptical with a President Trump, but at the least I can say that I haven't seen anything that specifically suggests he won't be. I think that's about as close to certainty as we can hope to come.

posted by johnnyFive: 850 days ago