We live-blogged the first day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. The transcript is available at this link.
This week the U.S. Senate Judiciary Committee will begin confirmation hearings to consider the nomination of Judge Neil M. Gorsuch to serve as an associate justice of the U.S. Supreme Court.
Since President Donald Trump announced his nomination to fill the vacancy created by the late Justice Antonin Scalia, a full court press has been unleashed to examine Judge Gorsuch’s character and credentials, as well as the judicial record he has amassed over the past ten years.
What’s most remarkable about the deep dive is the fact that Judge Gorsuch is indisputably qualified to serve on the nation’s highest court in the land. Last week the American Bar Association delivered a unanimous “Well Qualified” rating for his nomination, its highest possible assessment. The ABA’s exhaustive review evaluates a nominee’s integrity, professional competence and judicial demeanor. Senators Pat Leahy (D-Vt.) and Chuck Schumer (D-N.Y.) previously have referred to the ABA’s stamp of approval as the “gold standard.”
Judge Gorsuch is the gold standard. He is a man of sterling character who possesses an impressive command of the law. Since his unanimous approval to serve on the U.S. Court of Appeals for the 10th Circuit a decade ago, Judge Gorsuch has served with honor and distinction. His opinions reflect integrity and intellect mixed with ironclad impartiality and fidelity to the Constitution. His judicial philosophy is driven by the fundamental principles that the law applies equally to all, and that judges decide cases, not policy.
This morning the court hears oral argument in two cases. First on the agenda is Murr v. Wisconsin, in which the court will consider what constitutes the “parcel as a whole” for the purpose of regulatory takings analysis. Miriam Seifter had this blog’s preview. At Cornell University Law School’s Legal Information Institute, Eugene Temchenko and Nick Velonis have another preview. At PrawfsBlawg, Roderick Hills argues that the property-owners’ position may “actually undermine the security of private property, because by “elevating one aspect of state property law — lot lines — over all others, their broad reading of Takings doctrine would give state and local governments enormous incentives to make subdivision of large parcels very difficult.” In Forbes, J.V. DeLong argues that “the real questions underlying this case” “are matters of due process, equal protection, and arbitrary government action.”
The court issued orders from its March 17 conference on Monday. It did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three argued cases, and it released its opinions in three more argued cases on Wednesday. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the March sitting is available on the court’s website. On Friday the justices met for their March 24 conference; our list of “petitions to watch” for that conference is available here.
The petition of the day is:
Issue: Whether, where the right to foreclose is extinguished as a matter of law by federal statute (Truth in Lending Act) and a unanimous Supreme Court decision (Jesinoski v. Countrywide Home Loans, Inc.), and a homeowner’s home is foreclosed upon by improper foreclosure judgment, a lender can use res judicata to bar examination of an invalid judgment that was barred by federal consumer protection law.
At 11:00 a.m. EDT on Monday, March 20, the Senate Judiciary Committee will begin its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. SCOTUSblog will live-blog the entire hearing. Below the jump is an overview of the blog’s coverage of the nomination up to this point.
Over the course of the past two weeks, this blog has published a series on Judge Neil Gorsuch’s jurisprudence in various areas. In addition to that coverage, we thought it might be helpful to offer a selection of additional articles that shed light on Gorsuch’s record and background. We include articles to illustrate Gorsuch’s thinking, opinions or personality, not to endorse the views of the authors.
During his nearly 30 years on the Supreme Court, the late Justice Antonin Scalia was perhaps best known for his commitment to originalism – the idea that the Constitution should be interpreted as it would have been understood by the Founders. Scalia’s dedication to originalism extended to the Fourth Amendment, which protects against unreasonable searches and seizures by the government. And it often meant that a justice whom many regarded as “conservative” reached pro-defendant results. For example, Scalia wrote the court’s 2012 decision in United States v. Jones, holding that a “search” took place when police officers attached a GPS device to the car of a suspected drug dealer and then used the device to track the car’s movements. Scalia and four other justices agreed that the installation and use of the device were no different, for constitutional purposes, than if the government had gone onto Jones’s property to collect information to use against him. This kind of “trespassing” would have been a “search” when the Fourth Amendment was first adopted in the 18th century, and so it is still a “search” today.
Not too long before he was nominated to fill Justice Antonin Scalia’s seat on the Supreme Court, Judge Neil Gorsuch published two opinions – in the same case – staking out some genuinely heterodox positions on administrative law. In the now-relatively well-known case of Gutierrez-Brizuela v. Lynch, Gorsuch wrote both the majority decision for the U.S. Court of Appeals for the 10th Circuit and his own concurrence, using the latter as an opportunity to argue against what is known in the law as “Chevron deference.”
The court’s holding in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council directs courts to defer to reasonable agency interpretations of ambiguous statutes; it is a foundational case in terms of the existing structure of American government, because it grants policymaking flexibility to the agencies that line Constitution and Independence Avenues, and reduces the relative role of courts (and the congressional statutes they are interpreting) in providing fixed stars for our core federal regulatory regimes. In a way, Chevron deference is responsible for making the views of the current head of the Environmental Protection Agency far more important than the content of the Clean Air Act in terms of setting national anti-pollution policy. Gorsuch’s opinion in Gutierrez-Brizuela points out that this result essentially inverts the conventional view of the separation of powers, under which Congress sets national policy through statutes, the courts interpret those statutes to “say what the law is,” and the executive branch carries the law into execution, rather than revising it from one administration to the next according to its policy whims. So we have the odd situation that Gorsuch is viewed as a revolutionary thinker – as taking up arms against a rule at the heart of modern administrative law – by advocating for an understanding of American government we all (should have) learned in high-school civics.
In The Washington Post, Robert Barnes and Ed O’Keefe report that “Senate Democrats are requesting more information about Supreme Court nominee Neil Gorsuch’s role defending the George W. Bush administration in lawsuits over terrorism policies and interrogation of detainees.” In The New York Times, Charlie Savage reports on Gorsuch’s job at the Justice Department, which put Gorsuch “at the center of both litigation and negotiations with Congress over legislation about” controversial topics such as “detainee abuses, military commissions, warrantless surveillance and [the Bush administration’s] broad claims of executive power.”
In The Wall Street Journal, Jess Bravin looks at Gorsuch’s ties to Oxford don John Finnis, Gorsuch’s thesis adviser at Oxford, who “revived the academic vitality of natural law, which posits that law’s legitimacy rests on moral values intrinsic to human nature” and which “undergirds much of modern conservative legal thought.” At NPR, Nina Totenberg reports that “the legal road signs” point to “the nominee’s conservatism,” and that although Gorsuch, “has never ruled directly on an abortion question,” “he has ruled on questions involving contraception and public funding for Planned Parenthood — unrelated to abortion,” and “in none of these cases has he sided with advocates of birth control or abortion rights.”