Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, February 3, 2017

Appellate Advocacy Blog Weekly Roundup February 3 2017


As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).


The dominant appellate news this week was President Trump's announcement of his nominee for the U.S. Supreme Court seat vacated by the death of Justice Scalia.  On Tuesday, Trump announced that he was nominated Judge Neil Gorsuch, of the 10th Circuit Court of Appeals, to fill the vacancy.  A quick and short bio of Gorsuch:

He is a strict adherent of originalism, Scalia’s belief that the Constitution should be interpreted based on the intent of the Founders. He also has much of Scalia's flair as a writer.

Gorsuch has the type of academic credentials common to high court justices: Columbia, Harvard Law, even Oxford. He clerked for Justices Byron White and Anthony Kennedy, then practiced law in Washington and did a stint at the Justice Department.

Because Gorsuch's nomination was the dominant appellate news of the week, this week's edition of the Weekly Roundup brings you several items to help familiarize yourself with him:

Gorsuch on Liberals and Litigation:

Much of the "discussion" this past week has been on what will happen during Gorsuch's confirmation hearings.  Will Democrats act to hold up the confirmation on principle grounds, asserting some sort of payback for Congressional Republicans refusing to hold a hearing on Merrick Garland throughout the past year?  Will Republicans use the "nuclear option" to prevent a filibuster?  Will Democrats allow the process, but challenge Gorsuch on his ideologies?  Will Democrats decide not to push the battle on this confirmation, perhaps saving the possibility of doing so on a later nomination?  All of that remains to be seen, but it's certain that if and when confirmation hearings begin, there will be a great deal of questioning and discussion of ideologies.

Gorsuch himself has written about the topic in an article that, perhaps, gives a little insight into what may come during his own confirmation hearings in a February 2005 article in the National Review.  In it, he wrote

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.

Gorsuch's Track Record:

CNN provided a write up that highlighted a number of Gorsuch's key rulings since joining the federal appellate bench, which might provide some insight into what expect from him on the high court.  

In the Hobby Lobby case he joined the opinion ruling that federal law prohibited requiring closely held corporations to provide contraceptive coverage for employees as part of employee insurance plans, and would have gone further and allowed individual owners of the company to challenge the mandate.  Gorsuch has been a defender of religious freedom in other contexts, as well, including prisoner rights.

One topic that has garnered some recent discussion is "Chevron deference" given by courts to administrative interpretations of regulations.  In that context, Gorsuch has been a critic and has urged reigning in the deference, perhaps a sign of changes to come in the Supreme Court's jurisprudence.

Interestingly, Gorsuch has been critical of legislative grants of authority to the executive branch, advocating limits on executive power and a stricter separation of legislative and executive functions than existing Supreme Court jurisprudence has required.  The Wall Street Journal has also written about this portion of Gorsuch's jurisprudence.

Democrats who are looking for silver linings about the possibility of a Justice Gorsuch on the Supreme Court might also check out a Slate essay that notes that Gorsuch "has shown flickers of humanity" in the area of criminal justice, including a case in which he dissented from an opinion upholding immunity for school police officers who handcuffed a student accused of being disruptive by burping in class.

Judge Gorsuch from a Legal Writing Standpoint:

Back in March, Megan Boyd had a blog post about Gorsuch's writing.  She noted that Gorsuch writes with rhetorical flair, but emphasized his use of powerful transitions, providing several examples. 

The Wall Street Journal has also written about Gorsuch's legal writing, noting that he has turned his legal opinions into "a form of wry nonfiction."

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