Sunday, February 5, 2017

Judge Gorsuch and White Collar Crime

It is always difficult to predict how someone will opine if they are on the Supreme Court.  This is especially true if the prior judicial opinions do not cover a wide span on issues. In the case of the nominee, Judge Gorsuch, we do have some opinions to examine.

It is clear that he has excellent credentials from schooling and prior service on the bench.  Interestingly, however, is that Judge Gorsuch's ratings are below those held by Judge Merrick Garland, who never received a hearing on his nomination. (see here)  And in many ways Judge Garland had superior experience as the Chief Judge for the District of Columbia.  After all, his court saw many cases that involved issues of national concern, like national security, including those dealing with Guantanamo. Further Judge Garland is neither a far liberal nor a conservative, having offered to the bench a centrist that would be more appeasing to an already split nation. Everyone seems to agree that Judge Gorsuch presents a conservative approach. (see here and here)

But looking solely at Judge Gorsuch, and not the unfortunate circumstance of the failure of Judge Garland to have the hearing that Judge Gorsuch will now receive, where does Judge Gorsuch stand on white collar matters is the question.

Typically, those on the right tend to be pro-prosecution on Fourth Amendment and drug crimes.  In contrast, the same position is not taken in a white collar case.  Professor Kelly Strader in his article The Judicial Politics of White Collar Crime, documents this paradox.   Judge Gorsuch has a strong record of supporting the prosecution. (See, e.g., United States v. Mendivil, 208 F. App'x 647 (10th Cir. 2006)(affirming drug related conspiracy).  And some of these cases might be considered white collar cases (See, e.g., United States v. Carnagie, 426 F. App'x 640 (10th Cir. 2011)(affirming a sec. 1001 HUD related case).

But if one looks at cases beyond the Fourth Amendment, like a gun-related case - we see him emphasizing a strict statutory interpretation. (See United States v. Games-Perez (dissenting)).  Justice Scalia was particularly strong in enforcing strict statutory interpretation in white collar cases (e.g., Skilling (concurring opinion), Sun-Diamond Growers, McCormick (concurring), Santos).  Justice Scalia was not shy to use vagueness and the Rule of Lenity to accomplish having a white collar statute strictly construed.  And in this regard there is a strong similarity seen with Judge Gorsuch. Judge Gorsuch's opinion in United States v. Renz, 777 F.3d 1105 (10th Cir. 2015) provides a glimpse of his statutory interpretation analysis.  He includes in the decision a diagram as he takes apart the elements of the statute in a methodical manner.  The opinion itself is well-organized, references precedent, and resorts to the Rule of Lenity when clarity is an issue. He was unwilling to accept the government's interpretation of this firearm statute.

So what can we expect if he joins the Supreme Court?  It is somewhat uncertain when examining the white collar area.  But it does appear that the government may have some problems if it tries to stretch statutes or if the statutes are not clear.

(esp) 

https://lawprofessors.typepad.com/whitecollarcrime_blog/2017/02/judge-gorsuch-and-white-collar-crime.html

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