Trump’s 10th Cir. SCOTUS Contenders Lack Privacy History

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By Jimmy H. Koo

Dec. 12 — Rulings by President-elect Donald Trump’s two possible U.S. Supreme Court nominees from the Tenth Circuit reveal little about their privacy and data security leanings.

U.S. companies will be left guessing as to how U.S. Court of Appeals for the Tenth Circuit Chief Judge Timothy M. Tymkovich and Judge Neil M. Gorsuch might rule on privacy and data security compliance issues at the Supreme Court. But both of the potential nominees from Trump’s list of 21 candidates are advocates of judicial restraint.

One of Trump’s early priorities will be to replace conservative Justice Antonin Scalia. Although the Republican-controlled Congress has sat on President Obama’s Supreme Court nominee Merrick Garland, it more than likely won’t hesitate to work towards pushing through a conservative justice.

Gorsuch has ruled on 15 privacy and information law cases since he was appointed to the bench in 2006 and Tymkovich has ruled on 26 of such cases since he was appointed in 2003, Bloomberg Law data show. Considering that each of the judges have ruled on more than 1,000 opinions during their tenure on the circuit bench, privacy and information law cases make up a very small portion of their decisions.

Philip L. Gordon, partner at Littler Mendelson PC in Denver and co-chairman of the firm’s privacy and background checks practice, told Bloomberg BNA that such a small percentage of privacy-related decisions by the two 10th Circuit judges isn’t enough to establish a strong judicial record on the topic.

Judicial Restraint

Despite the lack privacy and security case law, the judges’ opinions and comments show that the possible Supreme Court nominees place importance on judicial restraint and separation of powers.

Tymkovich’s former clerks previously told Bloomberg BNA that the mantra “the law is what the law is,” reflects the judge’s pragmatic philosophy. Another Tymkovich mantra is “don’t make law unless law needs to be made,” a former clerk said.

Tymkovich won’t find “something that’s not there, just because it would make the opinion easier to render,” former clerks told Bloomberg BNA.

Gorsuch shares Tymkovich’s beliefs that the law shouldn’t be made unless necessary. In August, Gorsuch wrote an opinion that heavily criticized the deference given to a government agency’s interpretation of a statute that it administers. This deference allows “agencies to make the law, to effect their own preferences about optimal public policy when a statute is ambiguous,” Gorsuch said.

He noted that courts deferring to agencies’ interpretation violate the separation of powers the founders deemed a “vital guard against governmental encroachment on the people’s liberties.”

Tymkovich received his law degree from the University of Colorado, Boulder and formerly was the Solicitor General of Colorado. Gorsuch received his law degree from Harvard University and formerly was a deputy associate attorney general at the Department of Justice.

As of Dec. 12, a fantasy league contest run by legal consulting company LexPredict placed Gorsuch as the most favored candidate among those voting, while Tymkovich came in second to last.

Trump’s transition team didn’t immediately respond to Bloomberg BNA’s e-mail request for comments.

With assistance from Jeffrey D. Koelemay in Washington

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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