Neil Gorsuch

Beth Klein Boulder Attorney’s take on Neil Gorsuch.

Judge Gorsuch is a strict constructionist. This means he applies the law as written and looks at the intent of the legislature only if the law is ambiguous.  This does not mean that he is a foundationalist – one who thinks that the Constitution is stagnant and must been seen through 18th Century eyes.

He dislikes greedy coupon class actions, but he has upheld significant judgments in favor of meaningful class actions.  He is the judge who – after decades of litigation – compassionately held in favor of the Plaintiffs in the Rocky Flats nuclear contamination case.  Many plainiffs had died during the long litigation.  Judge Gorsuch wrote the opinion.  A new trial was denied, and judgment entered with interest for $700 million.

https://www.ca10.uscourts.gov/opinions/14/14-1112.pdf

http://blogs.reuters.com/…/10th-circuit-in-rocky-flats-cas…/

We can imagine only injustice flowing from any effort to gin up the machinery of trial for a second pass over terrain it took fifteen years for the first trial to mow through….Injustice not only in the needless financial expense and the waste of judicial resources, but injustice in the human costs associated with trying to piece together faded memories and long since filed away evidence, the emotional ordeal parties and witnesses must endure in any retrial, the waste of the work already performed by a diligent and properly instructed jury, and the waiting – the waiting everyone would have to endure for a final result in a case where everyone’s already waited too long.

In the Hobby Lobby opinion, Hobby Lobby objected to insuring three forms of birth control and agreed to insure others. The three forms theoretically stop the progress of a fertilized egg.

Hobby Lobby is a religious based corporation that would have faced millions in fines for refusing to purchase a complaint health insurance policy.  The 10th Circuit opinion authored by Gorsuch holds that organizations can have legitimate religious interests.   The opinion respects the rule of Citizen’s United and also the view that fundamental political change must be made by the people or the legislative branch.   It holds that the goverment must respect real religious beliefs.

This decision cuts in favor of all religions and religious entities.   The government cannot force any religious organization to be complicit in actions that are repugnant to that religion.

The opinion was balanced in that sixteen other forms of birth control were funded and the right of choice preserved.  Individuals who wanted to have the one of the three objectionable forms of birth control instead of the other 16 could find a different job or simply pay for it.  All rights are preserved.

Consider the Hobby Lobby decision in context of a different religion.  Can the government force a Jewish, Muslim, or Buddhist organization to engage in behavior that it considers repugnant?   The answer is no.

This is not a just a glossy pro-life pro-Christian opinion as memes suggest.  It is much more than that.  It balances interests with precision and does not deny the rights of the freedom of religion or reproductive rights to anyone.  We have to live together with different veiws.  This decision results in balance with the least impact on either value group.

I read his opinion on gun rights and gun control.   In this case a felon was charged with being in possession of a gun in violation of his parole.  The felon claimed that he didn’t know he was a felon because of a complicated plea deal.  Judge Gorsuch would have none of it and refused to expand the burden of proof of the prosecution or add additional elements to the crime.  He followed precedent and held that for a conviction of felon in possession, all the prosecution need prove was that the felon knew he was in possession of a gun.  Gun rights were not expanded.

I read his opinion concerning immigrants.  When the government wanted to apply entry restrictions retroactively, Judge Gorsuch said no.   He was unwilling to allow the executive branch to bully immigrants and to arbitrarily apply law and regulation.

He is a humble man, brilliant, and calls out greed and kindness. He applies law; he does not create it. He will respect precedence just like Justice Roberts, and I don’t believe he would overrule Roe v. Wade.  He is not a conservative activist judge.

I hope that he becomes the next Justice.  President Obama, then Senator, and Hillary Clinton both voted FOR his appointment to the 10th Circuit.  He teaches at the University of Colorado – and is beloved. He is not “in the mold” of Scalia in my opinion.

I am concerned that he is going to be a victim in political pay back.  It is inevitable that the Dems are going to lose this seat. The Republicans have the votes.

The next in line for this nomination is far more conservative.  A perfect political trap has been set; the Dems stop his appointment, they will get something worse (but claim a victory because they got payback). The next in line, if Gorsuch is not confirmed, is more likely to overturn Roe as he is a conservative activist judge

Gorsuch lives on three acres off of Lookout Road, north of our house. He has horses, chickens and goats.  And remember we live in deep blue and beautiful Boulder – he did not choose to live anywhere else.

He is a very good skier.