Mimesis Law
20 September 2017

Judge John Kane on Supreme Court Nominee, 10th Circuit Judge Neil Gorsuch

February 28, 2017 (Fault Lines) — Ed. Note: Colorado Senior District Court Judge John Kane was asked his thoughts about Tenth Circuit Judge and Supreme Court nominee, Neil Gorsuch.

I read a great many appellate opinions and I think Judge Gorsuch writes better than any other. His opinions, concurrences and dissents are clear, cogent and mercifully to the point. I have been affirmed and reversed by him and in each instance I thought he was right and fair.

Unlike some appellate opinions, his do not set up straw men and knock them down. In other words, he states each position as forcefully and intelligently as possible and then rules on the basis of analysis. He doesn’t take cheap shots and he doesn’t engage in in personam drivel.

Long ago I gave up trying to find any meaning in the words “liberal” and “conservative.” They seem to mean whatever the user wants them to mean. I won’t engage in that silly exercise with respect to any judge. I do know Judge Gorsuch’s writings indicate a strong respect for tradition and precedent and I don’t find his decisions reflecting any sort of ideological bias.

I know he is collegial, listens attentively and respects other’s opinions. What I also note is an absence of hubris, which makes him somewhat unusual. My readings suggest to me that he is very concerned with the separation of powers and thinks legislation belongs to the legislature and adjudication belongs to the judiciary. Some indication is present that he thinks there is far too much adjudicative activity in the executive branch’s administrative agency rulings and he has questioned the Chevron doctrine. Perhaps because I agree with that view, I am very comfortable with his nomination.

As the saying goes, we could do worse. A hell of a lot worse. I’m not sure we could expect better, or that better presently exists.

2 Comments on this post.

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  • Richard G. Kopf
    28 February 2017 at 5:40 pm - Reply

    Judge Kane,

    Thanks very much for writing this insightful post. You make a very important point.

    I agree that it is silly to categorize judges as “liberal” or “conservative.” On the other hand, if these words have meaning when applied to judges, then I have a dual personality disorder.

    Sometimes I am “liberal” (partial-birth abortion cases) and sometimes I am “conservative” (various habeas corpus death penalty cases). I see the same “disorder” in many of my colleagues, especially those for whom I have great respect.

    In this regard, I recall my mentor, the late Judge Don Ross of the Eighth Circuit. I suspect few would have guessed from his dissent in Jones v. Clinton, 72 F.3d 1354 (8th Circuit 1996)* that he had run the 1968 Republican convention in Miami that nominated Richard M. Nixon.

    For Ross, being a judge was not about one’s personal political ideology. His robe was embroidered inside with the words “Do whatever is right,” a saying that Ross uttered throughout his life.

    All the best.

    Rich Kopf

    *https://scholar.google.com/scholar_case?case=4655029432138828272&q=Jones+v.+Clinton,+8th+Circuit&hl=en&as_sdt=3,24

  • Chris Seaton
    1 March 2017 at 11:20 am - Reply

    To both Judge Kane and Judge Kopf:

    I see the terms “liberal” and “conservative” having less meaning with each passing day. If a jurist issues an opinion that is grounded in the law, the terms have no meaning as far as I see it. It’s called doing your job.

    Plus, Judge Gorsuch penned my favorite dissent about SROs treatment of children burping and farting in schools, so I’m kind of a fan from the get-go.

    It’s always good to see both of you here. Thank you for your time and insight.