Jason Murray is a partner at the law firm Bartlit Beck Herman Palenchar & Scott in Denver.
Many liberals will be tempted to instinctively oppose Supreme Court nominee Neil Gorsuch’s confirmation — because he is a self-proclaimed conservative, or because he was nominated by a divisive (even dangerous) president, or because of the shameful way that President Barack Obama’s nominee for the same vacancy was denied fair consideration.
Succumbing to this impulse, though understandable, would be a mistake. Gorsuch will make an exceptional Supreme Court justice. He possesses a rare combination of intelligence, humility and integrity, not to mention a fierce commitment to the rule of law. In fact, he is remarkably similar on these metrics to Supreme Court Justice Elena Kagan.
I had the pleasure of serving year-long stints as a law clerk for both Gorsuch (at the U.S. Court of Appeals for the 10th Circuit) and Kagan (at the Supreme Court). Putting the two of them in a room together would be a recipe for vigorous — though congenial — political disagreement. But despite these differences of politics, both my former bosses share a profound commitment to the rule of law. That commitment means that all litigants before them are treated evenhandedly, and that the cases they hear are judged only on the strength of the legal arguments, without regard to partisan politics.
It is not hard to find examples of Gorsuch reaching politically liberal results, including upholding environmental regulations (Energy and Environment Legal Institute v. EPEL), protecting the autonomy of tribal governments (Ute Indian Tribe v. Utah) and upholding the Fourth Amendment protection against unreasonable searches (United States v. Carloss). In his commitment to law over politics, he is similar to Kagan, who famously sided with conservatives to invalidate portions of the Affordable Care Act.
Both Gorsuch and Kagan consistently emphasized to us law clerks that, if we weren’t telling them when we thought their instincts on a case were wrong, we weren’t doing our jobs. For both, the goal was to reach the correct legal result, rather than advance any political party’s agenda. As Gorsuch has said, “A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”
This zeal for the rule of law gives me every confidence that Gorsuch, like Kagan, will stand firm against any effort by the Trump administration to abuse executive power. For instance, in one notable case, Gorsuch ruled against the government when it denied legal status to an undocumented immigrant by retroactively applying new rules that contradicted prior judicial interpretation of the immigration laws. He cautioned that “when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history [have] sought to exploit ambiguous laws as a license for their own prerogative.” Gorsuch’s opinion is a much-needed clarion call against executive usurpation of the judicial power to interpret the law.
In times like these, liberals should welcome a nominee like Gorsuch — who is honest, principled and committed to safeguarding the rule of law.
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