David C. Frederick is a lawyer at the firm Kellogg, Hansen, Todd, Figel & Frederick who specializes in Supreme Court and appellate practice.
As a longtime supporter of Democratic candidates and progressive causes, I understand the anger at the Republicans’ mistreatment of Judge Merrick Garland after he was nominated to the Supreme Court by President Barack Obama. Partisan advantage reigned over fairness of process, and an exceptionally fine jurist was treated shabbily.
But as Judge Neil Gorsuch — President Trump’s choice for the court seat that Garland would have filled — approaches his confirmation hearings, I fear that the lingering resentments of the past year will cloak a fair consideration of him as a nominee. Gorsuch — my former law partner and longtime friend — is brilliant, diligent, open-minded and thoughtful. He was the only Supreme Court candidate considered by this administration that I could support. The Senate should confirm him because there is no principled reason to vote no.
As a private-sector attorney, Gorsuch could have practiced with any large corporate law firm in the United States, but he instead chose a small firm in its very early days — a riskier path, to be sure. Over the course of his career, he has represented both plaintiffs and defendants. He has defended large corporations, but also sued them. He has advocated for the Chamber of Commerce, but also filed (and prevailed with) class actions on behalf of consumers. We should applaud such independence of mind and spirit in Supreme Court nominees.
As a judge on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has not been the reflexive, hard-edged conservative that many depict him to be. He has ruled for plaintiffs and for defendants; for those accused of crimes as well as for law enforcement; for those who entered the country illegally; and for those harmed by environmental damage.
Anyone who sees Gorsuch as automatically pro-corporation should talk to the officers at Rockwell International and Dow Chemical, against whom he reinstated a $920 million jury verdict for environmental contamination at the Rocky Flats nuclear facility. Executives at U.S. Tobacco Company might also be wringing their hands at the moment, given that Gorsuch, as an attorney, helped to attain one of the largest antitrust verdicts in history against the company.
Gorsuch’s approach to resolving legal problems as a lawyer and a judge embodies a reverence for our country’s values and legal system. The facts developed in a case matter to him; the legal rules established by legislatures and through precedent deserve deep respect; and the importance of treating litigants, counsel and colleagues with civility is deeply ingrained in him.
Some years ago, he called me about a case he had reviewed on the 10th Circuit’s motions docket involving an Arab Muslim incarcerated in a state prison. The guards allegedly called the inmate “9/11” and mistreated him during his confinement. The district court had rejected the inmate’s claim that his constitutional rights had been violated and dismissed his lawsuit.
Over the phone, though, Gorsuch explained that he thought the plaintiff prisoner might have a valid claim, but couldn’t tell for sure. He asked our law firm to represent the inmate, which I agreed to do so long as a younger colleague could be the principal lawyer on the case and argue under my supervision.
Gorsuch agreed and then recused himself from the case to avoid an appearance of conflict. My associate, Janie Nitze, later won a reversal by the 10th Circuit, which reinstated the prisoner’s claims. That man got his day in court because of Gorsuch’s conscientious approach to judging.
I have no doubt that I will disagree with some decisions that Gorsuch might render as a Supreme Court justice. Yet, my hope is to have justices on the bench such as Gorsuch and Garland who approach cases with fairness and intellectual rigor, and who care about precedent and the limits of their roles as judges. The Supreme Court’s work is complex and varied, and we need those qualities of mind and judicial temperament for all cases.
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