Judge Gorsuch is Meeting Every New Benchmark Set by the Minority Leader

My colleague the Minority Leader last week met with the nominee. Afterwards, he told reporters he had “serious, serious concerns” about Judge Gorsuch.

Well, I guess I shouldn’t be surprised. After all, it seems the Minority Leader had concerns about the nominee even before he was announced.

Before Judge Gorsuch was announced, the Minority Leader made clear that any nominee must be “mainstream.” But, it became clear immediately that Judge Gorsuch is widely regarded as a mainstream judge with impeccable credentials. Liberal law professor Laurence Tribe says that “he’s a brilliant, terrific guy who would do the court’s work with distinction.” Alan Dershowitz, who’s certainly no conservative, says Judge Gorsuch will be “hard to oppose on the merits.”

Even President Obama’s Acting Solicitor General, Neal Katyal, said Judge Gorsuch “would help to restore confidence in the rule of law.” The chorus goes on.

Well apparently because the nominee is so obviously mainstream, the benchmark for my colleague’s concerns keeps changing. The Minority Leader has conveniently developed a new test. Now he says that the benchmark is independence: “The bar for a Supreme Court nominee to prove they can be independent, has never, never been higher.”

Well fortunately for the Minority, Judge Gorsuch passes that bar with flying colors, just like the “mainstream” test.

Judge Gorsuch’s record makes clear that he’s an independent and fair-minded judge who’s deeply committed to the separation of powers. Here’s just one example from his many opinions on this point.

Just last year, Judge Gorsuch had to decide a case about the authority of the Board of Immigration Appeals (BIA), which answers to the Attorney General. The BIA wanted to change the Attorney General’s power to waive immigration requirements for illegal immigrants. And it wanted the new rules to apply to undocumented immigrants whose waiver applications were already in the works.

Judge Gorsuch said ‘No’ to this executive agency. To be clear, Judge Gorsuch was asked to decide whether an executive agency in charge of the immigration laws could change the law on a whim in a way that many believed was unfair to immigrants who’d already sought waivers. He said ‘No.’

With due respect to my friend the Minority Leader, there’s no doubt that Judge Gorsuch would say ‘No’ to this or any other part of the executive branch that oversteps its bounds.

Here’s what Judge Gorsuch wrote about the separation of powers and executive overreach. For him to defer to the executive agency in that case would be “more than a little difficult to square with the Constitution of the framers’ design.” That’s because doing so would allow agency bureaucracy to “swallow huge amounts of core judicial and legislative power,” which the Constitution assigns to separate branches of government.

So Judge Gorsuch was concerned about the separation of powers. He was concerned about people whose liberties might be impaired. And because of those concerns, he said ‘No’ to the immigration agency’s policy whim of the day.

Judge Michael McConnell, a former colleague of Judge Gorsuch’s on the Tenth Circuit, makes the same observation about this case. He says the scope of executive power arguably “will be the most prominent Supreme Court issue of the coming decade.” He says Judge Gorsuch analyzes that issue in a way that’s faithful to the Constitution and to the independence of the judiciary. And he points to Judge Gorsuch’s thinking on this question.

Judge Gorsuch wrote:

“What would happen . . . if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret them . . . [this would] risk the possibility that unpopular groups might be singled out for this sort of mistreatment — and [would] rais[e] along the way, too, grave due process, fair notice, and equal protection problems. . . . It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers.”

That’s the writing of an independent judge who believes in the separation of powers.

You know, there’s a bit of irony to some of the criticism I’ve heard leveled against Judge Gorsuch. On the one hand, I’ve heard we have to make sure that he’ll be independent and that he won’t rubber-stamp the President’s agenda. On the other hand, I’ve heard he’ll be way too tough on the executive branch as it fulfills the President’s agenda. Well, you can’t have it both ways.

Judge Gorsuch has shown he is faithful to the separation of powers in our Constitution. That means he will be an independent judge who will say ‘No’ when the other branches of government overreach.

And you don’t need to take my word for it. Listen to President Obama’s Acting Solicitor General, Neal Katyal. He’s no fan of the President’s Executive Order. But he says that Judge Gorsuch “will not compromise principle to favor the president who appointed him.” Instead, Katyal said Judge Gorsuch “would help to restore confidence in the rule of law.”

Judge Gorsuch’s record and reputation leave no room to doubt that he’s a mainstream, independent judge. He’ll apply the law fairly. And he won’t be afraid to say ‘No’ when the Constitution requires it.

Every time my colleague the Minority Leader has set out a standard for filling this Supreme Court seat, Judge Gorsuch has met it. He’s mainstream. And he’s independent. When my colleague chooses the next new standard, I bet he’ll meet it too.