Mimesis Law
18 April 2021

Handicapping Prospective Justices: It Ain’t That Easy

February 2, 2017 (Fault Lines) — President Trump’s nomination of Neil Gorsuch has led to the expected opposition. This has less to do with Gorsuch’s qualifications or character, and more to do with the fact that Trump nominated him. The perception is that since he was nominated by a Republican president, he will be a reliable “Republican vote.” It isn’t nearly that simple. A justice can’t be characterized by his or her position on the “left/right” political spectrum, or lumped into their patron’s positions on particular issues.

Take Scalia, who had a reputation for being “good on criminal defense issues.” On some issues he was, such as confrontation (Crawford v. Washington, Melendez-Diaz v. Massachusetts), he was pretty good for the defense. On others, like effective assistance of counsel (Missouri v. Frye), he was terrible. The same is true of Gorsuch.

Take Gorsuch’s dissent in A.M. v. Holmes, which involved the arrest, search, and detention of a seventh grader for the heinous crime of “fake burping.” While the 10th Circuit held that the officers and school officials could not be liable because of qualified immunity, Gorsuch dissented:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

Likewise in Games-Perez v, U.S., Gorsuch dissented from the denial of an en banc rehearing for a defendant who had convicted of a being a felon in possession of a firearm. The judge who had accepted his plea in the original felony had told him (mistakenly) that his deferred sentencing agreement meant that he was not a convicted felon. The issue in the case turned on whether the government had to prove that Games-Perez knew that he was a convicted felon, or only that he knowingly possessed a gun. Gorsuch articulated the former position:

People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.

This court’s failure to hold the government to its congressionally specified burden of proof means Mr. Games-Perez might very well be wrongfully imprisoned. After all, a state court judge repeatedly (if mistakenly) represented to him that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction. Given these repeated misstatements from the court  itself, Mr. Games-Perez surely has a triable claim he didn’t know his state court deferred judgment amounted to a felony conviction. Yet, because of our precedent in Capps, the government never had to face a trial on this question; it never had to prove its case that Mr. Games-Perez knew of his felon status. It was allowed instead to imprison him without the question even being asked.

There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.

But not always. Gorsuch joined (but did not write) the opinion in Rodriguez v. New Mexico, which held that the detention and search of a defendant who was carrying a concealed pistol was justified, despite the fact that New Mexico is a concealed-carry state and there was no indication that defendant was doing anything wrong. In other words, “officer safety” trumped the defendant’s Second and Fourth Amendment rights.

And that’s just looking at his record on criminal issues. As with any good judge, Gorsuch’s jurisprudence is not reducible to politics. In an ideal world, that’s how we would evaluate all judges.

One of the (many) problems in modern America is the lack of nuance in public discourse. As a result, public officials tend to get painted as “left” or “right,” and it’s assumed that one’s position on one issue is an accurate predictor of one’s view on a whole range of other issues. For example, there’s no obvious reason that someone’s who’s pro-life should also be against gun control, yet that’s the way it generally turns out. This is understandable, up to a point, since the two-party system tends to enforce a measure of ideological discipline on politicians who wish to advance to high office.

In the political branches, this is understandable, maybe even inevitable. But it’s a problem when comes to judges, and specifically when it comes to the Supreme Court. President Trump’s nomination of Neil Gorsuch is an illustration. The protests against him started immediately, and the fact it was Gorsuch and not Hardiman (or Mickey Mouse) didn’t matter at all. As the Lord High Admiral put it:

No matter who was nominated, there was a blank space to fill in the name. That doesn’t leave much to discuss, and characterizes the fringe elements of politics well.

I’d dispute that the protesters were “fringe elements.” The Republican Senate had a similar “fill in the blank” approach to President Obama’s nomination of Merrick Garland, and reflexive Democratic opposition to any of Trump’s nominations is surely a rational (though not the only) response to such obstructionism; if for no other reason than to inspire its base. But that’s a political issue, stretching back to the nomination of Robert Bork, and even further to, Roe v. Wade. Those two events were the genesis of the “Roebork Fallacy,”[1] that a judge should be evaluated by which political party he is expected to side with.

This is the conundrum we’re caught in: Gorsuch is certainly a qualified guy. In an ideal world, his nomination would probably be relatively uncontroversial. But because of what the judicial process has degenerated into, we’re less concerned about putting Justices on the Supreme Court as we are about who wants to put them there.

[1] I just that made name up, so don’t go looking for it on Wikipedia.

2 Comments on this post.

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  • John
    2 February 2017 at 12:28 pm - Reply

    As far as the mass opposition popular literature and blogs go, I see almost nothing on the types of cases you are discussing. They are surely important to criminal law attorneys. I am sure there are many other issues of importance to other groups.

    The opposition I see is primarily about women’s rights, if he will allow voter suppression and immigration, DREAMers, DACA, etc. These are the two greatest judicial threats women and racial minorities see from Republicans, and they have extremely good justification for being worried. Talking about mass opposition to Gorsuch while only mentioning Roe v Wade in passing and not talking about voter rights, immigration or other women’s issues at all is disingenuous.

    There was another worry in the LGBT community the Trump would nominate a justice that would help those who would use the law to attack LGBT citizens. That opposition has been reduced quite a bit by Gorsuch’s record (such as it is). It seems Trump hunted heavily for a judge who would be pro-life on Roe v Wade but gay-friendly.

    If you want to talk about how criminal law attorneys should regard Gorsuch, talk about that, as you did. But don’t ignore the main reasons for mass opposition and play this slight of hand “mass opposition” transitioning to “concerns of criminal law attorneys.”

    • SPM
      3 February 2017 at 12:36 pm - Reply

      You do realize that this is a site (primarily) for criminal defense attorneys? It would be illogical for a post on this site to NOT focus on those issues.