Gorsuch in the Mainstream He was upheld at the Supreme Court in seven of eight cases.
https://www.wsj.com/articles/gorsuch-in-the-mainstream-1486513094
One political trope of modern judicial politics is to declare a conservative nominee “out of the mainstream.” The line is never applied to progressive nominees because to the media the mainstream is by definition progressive. Expect to hear more of this about Supreme Court nominee Neil Gorsuch, albeit without evidence to back it up.
According to an analysis by Jeff Harris at Kirkland & Ellis, Judge Gorsuch has written some 800 opinions since joining the Tenth Circuit Court of Appeals in 2006. Only 1.75% (14 opinions) drew dissents from his colleagues. That makes 98% of his opinions unanimous even on a circuit where seven of the 12 active judges were appointed by Democratic Presidents and five by Republicans. Add the senior judges, who hear fewer cases, and the circuit has 11 Republicans and 10 Democrats.
Judge Gorsuch is known on the Tenth Circuit as a strong writer and consensus builder, and the pattern extends to his participation in opinions by other judges. Judge Gorsuch has heard roughly 2,700 cases and dissented in only 35—1.3%.
Not many of his cases have ended up at the Supreme Court, but when they have his analysis has been routinely upheld by the Justices. Of at least eight cases considered by Mr. Gorsuch that were appealed to the Supreme Court, the Justices upheld his result in seven. In four of those the decisions were unanimous.
Among those was a government speech case on whether a town had to accept a Utah church monument in a public park next to an existing monument of the Ten Commandments (Pleasant Grove City, Utah et al. v. Summum). Judge Gorsuch voted to reconsider the court’s ruling against the town and the Supreme Court agreed. In another, Judge Gorsuch joined a ruling that Oklahoma prevent Texas from taking water from Oklahoma. The Supreme Court agreed. (Tarrant Regional Water District, Petitioner v. Rudolf John Herrmann).
His lone defeat was Direct Marketing Association v. Brohl on whether the Tax Injunction Act barred a federal legal challenge to a state tax law. A unanimous Supreme Court said the lawsuit could proceed.
Among the other three, one was Burwell v. Hobby Lobby in 2014 allowing companies to opt out of ObamaCare’s contraception requirement. The Supreme Court upheld Judge Gorsuch 5-4. But the decisions don’t all break down on the typical left-right spectrum. In Brian Russell Dolan v. U.S., the majority upholding Judge Gorsuch’s decision included Justices Ruth Bader Ginsburg, Sonia Sotomayor,Stephen Breyer,Samuel Alito and Clarence Thomas. The case involved whether a court that has missed a deadline can still order a criminal to pay restitution.
Judge Gorsuch has said that an originalist interpretation of the Constitution means that judges will sometimes reach decisions they don’t prefer politically. His nomination has drawn support from Democrats including President Obama’s former Acting Solicitor General Neal Katyal, who called Judge Gorsuch “thoughtful and brilliant” and said that “as a judge, he has always put aside his personal views to serve the rule of law.”
All of which helps to explain why Senate Democrats aren’t uniting in opposition. Minority Leader Chuck Schumer is walking a delicate line between the left, which is demanding a filibuster, and the 10 Democrats who are running for re-election in 2018 in states carried by Donald Trump. Mr. Schumer is saying Judge Gorsuch will have to meet a “60-vote standard,” which is the filibuster line without declaring a filibuster. Look for him to see which way the nomination wind blows.
Judiciary Chairman Chuck Grassley says he plans to hold Mr. Gorsuch’s nomination hearing before the Senate’s Easter recess in April. The faster the better.
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