Trump SCOTUS Short-Lister Gorsuch: Five Things to Know

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By Patrick Gregory

Tenth Circuit Judge Neil M. Gorsuch could replace the late Justice Antonin Scalia on the U.S. Supreme Court, and fill his shoes as the most colorful writer on the court.

Gorsuch’s “writing reflects the principle that the average litigant who comes to the federal courts to redress an injury should be able to read the opinion resolving the dispute and understand why the court reached that ruling,” former Gorsuch clerk David J. Feder, now an associate at Munger, Tolles & Olson LLP, told Bloomberg BNA by e-mail.

President-elect Donald Trump has said he’ll choose someone from his short list of 21 potential high court nominees including Gorsuch to replace Scalia, who died last year.

Gorsuch is now on Trump’s even shorter list of eight potential nominees, according to a Jan. 3 Politico story.

1) Clear, Captivating Writer

The judge’s “writing is clear, concise, and devoid of excessive legalese,” Feder said.

Gorsuch “avoids abbreviations and uses contractions where appropriate, often to create a satisfying rhythm to his writing,” Feder said.

The former clerk said Gorsuch “also makes effective use of quips and cultural references that make his opinions a joy to read—and deepen the reader’s understanding.”

“But perhaps my most favorite aspect of the judge’s writing is his ability to humanize disputes,” he said.

The Denver Post said in December that whatever “the topic of his opinions, Gorsuch has developed a reputation for language that is both sharp and conversational within a captivating narrative style—one that might be judiciously spiced for maximum effect.”

“Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism,” legal reporter Alison Frankel wrote of Gorsuch’s concurrence in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

2) Fantasy Front-Runner

FantasySCOTUS—a fantasy league contest founded by constitutional law professor and court watcher Josh Blackman— listed Gorsuch as fantasy players’ top pick among potential nominees as of Jan. 3.

Noah Feldman of Harvard Law School also put Gorsuch in first place, the constitutional law professor wrote in November.

Gorsuch is “only 49,” is “recognized in conservative legal circles as a serious thinker” and has “an impressive resume that includes a Marshall scholarship to Oxford, a Supreme Court clerkship, and a serious book on the ethics of assisted suicide and euthanasia,” Feldman said.

The Empirical SCOTUS blog said in November that Gorsuch “presents himself as a potential leader among the candidates” based on criteria including experience and age.

David Lat, a former Ninth Circuit clerk and the founder of Above the Law, a legal blog, has kept an eye on Gorsuch as a potential nominee for more than a decade.

3) Scalia Defender

Trump said he’s looking for a nominee who is like Scalia.

Gorsuch appears to meet that standard based on a recent study, Searching for Justice Scalia: Measuring the ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court .

That study examined the ‘Scalia-ness’ of 15 potential nominees on Trump’s list, measuring factors such as the percentage of opinions demonstrating Scalia’s originalist judicial philosophy.

Gorsuch’s “Scalia-ness” was second only to that of Utah Supreme Court Associate Chief Justice Thomas Rex Lee. Lee does not appear on Trump’s shorter list.

The “great project of Justice Scalia’s career” was to remind us that unlike legislators, judges shouldn’t “appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” Gorsuch said in Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905 (2016).

The judge responded to criticism that Scalia focused too much on how “judicial decisions should be made and not enough on results.”

“Well, I’m afraid you’ll have to mark me down” as “an adherent to the view that outcomes (ends) do not justify methods (means),” Gorsuch said.

An “assiduous focus on text, structure and history is essential to the proper exercise of the judicial function,” Gorsuch said.

4) Chevron Critic

Gorsuch is a vocal critic of the Chevron doctrine, named after Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), under which courts are to defer to agencies’ reasonable interpretations of ambiguous laws.

Agencies have issued so many rules thanks to Chevron deference that “it’s hard to keep up,” Gorsuch wrote for the Tenth Circuit in a May decision, Caring Hearts Pers. Home Servs., Inc. v. Burwell, 824 F.3d 968 (10th Cir. 2016).

Gorsuch again took aim at Chevron deference in August in Gutierrez-Brizuela, in which the Tenth Circuit found that a Board of Immigration Appeals ruling concerning the attorney general’s discretion to “‘adjust the status’” of undocumented immigrants wasn’t retroactive.

Gorsuch wrote the Tenth Circuit’s opinion, but he also wrote a separate concurrence to discuss two Supreme Court decisions that he called the “elephant in the room”— Chevron and Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. , 545 U.S. 967 (2005).

That concurrence “electrified administrative law scholars,” Feder wrote in The Administrative Law Originalism of Neil Gorsuch, Yale J. on Reg.: Notice & Comment (Nov. 21, 2016).

Brand X requires courts “to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies,” Gorsuch said.

Those decisions “permit executive bureaucracies 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” as designed by the Framers, he said.

Conservative legal scholar Jonathan Adler wrote in August that the concurrence “presents a powerful and compact argument” for reconsidering the Chevron doctrine.

5) Overcriminalization Opponent

According to Gorsuch, just as there are too many regulations, there are also too many criminal statutes.

“Today we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades,” he said in a 2013 speech to the Federalist Society.

Further, “the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year,” Gorsuch said.

“Neither does that begin to count the thousands of additional regulatory crimes buried in the Federal Register,” he said.

Gorsuch said that without “written laws, we lack fair notice of the rules that we as citizens have to obey.”

But “with too many written rules, don’t we invite a new kind of fair notice problem?” he asked.

Gorsuch asked “what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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