Update: The Gorsuch Confirmation Hearings

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While federalism was rarely discussed, and preemption wasn’t discussed at all, one particular issue of interest to local governments was explored at length.

Judge Neil Gorsuch testifies before the Senate Judiciary Committee during his confirmation hearing on Wednesday, March 22, 2017. (Wikimedia Commons)

Confirmation hearings generally follow a predictable course, and Judge Neil Gorsuch’s hearings have been no exception. In most cases, senators not aligned with the president’s political party ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, issues of interest to state and local governments often receive little meaningful attention.

Apart from two notable exceptions during Judge Gorsuch’s hearings – one occasion when a friendly Senator Jeff Flake (R-AZ) asked Judge Gorsuch whether his ruling in a particular case was consistent with the “principle of states as laboratories of democracy,” and another occasion when friendly Senator Mike Crapo (R-ID) asked Judge Gorsuch to discuss the Tenth Amendment – federalism was rarely discussed, and preemption wasn’t discussed at all. Likewise, many issues of particular importance to local governments, such as qualified immunity and property rights, were also not explored.

Judge Gorsuch did state numerous times that judges should not act as legislators. “I get four law clerks, [each] for one year at a time. If you were to make laws, you wouldn’t design a system where you’d let three older people with four law clerks straight out of law school legislate for a country of 320 million people.”

Judge Gorsuch was also not asked about his concurring opinion from last year in Direct Marketing Association v. Brohl in which he strongly implied that, given the opportunity, the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

The issue of most interest to state and local governments discussed more at length was Justice Gorsuch’s views on Chevron deference.

In Chevron v. NRDC (1984), the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. State and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

Less than six months ago, Judge Gorsuch criticized Chevron deference in a concurring opinion, leading to speculation that, if he becomes a Supreme Court Justice, he would vote to overrule Chevron. When asked about this concurring opinion, Judge Gorsuch stated that he wrote separately “to tee up questions for my bosses [the Supreme Court justices].” He continued: “I don’t know how I would rule if I were a Supreme Court justice on the question.”

Apart from the question of whether Judge Gorsuch believes in precedent (he does, and has written a book about it), three additional cases/topics came up repeatedly during the confirmation hearings. Judge Gorsuch avoided expressing opinions on Roe v. Wade (1973; abortion) and Citizens United v. FEC (2010; campaign finance), stating they are “the law of the land.” He was also asked to defend his dissenting opinion in the “frozen-trucker case” wherein the majority of the court ruled in favor of a truck driver who claimed he was wrongfully fired for disregarding his supervisor’s instructions to stay with a broken down trailer in freezing weather.

Unsurprisingly, Judge Gorsuch came to the hearings prepared. When accused of not being a friend to the “little guy,” he cited a long list of cases where he ruled in favor of the “little guy.” When asked if he is an originalist (one who interprets the Constitution’s meaning as stable from the time of enactment), he rejected being labeled and pointed to cases where liberal justices have tried to determine the framer’s intent in interpreting a provision of the U.S. Constitution. More fundamentally, he tried to portray himself as well within the legal mainstream. Finally, he noted that he rarely dissents – but when he has, he has done so “in about equal numbers from judges appointed by presidents from the two parties.”

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.