In more than a decade on a federal appeals court, Judge Neil Gorsuch never had one of his own written opinions overturned by the Supreme Court, according to the questionnaire he delivered to Capitol Hill over the weekend in preparation for an eventual confirmation hearing.
The questionnaire kicks off the confirmation process, and runs tens of thousands of pages long, covering opinions issued, law review articles written, notes from courses taught at universities and speeches given. Judge Gorsuch’s version even includes audio files linking to some of those speeches.
The questionnaire is also an early test of the way the judge plans to present himself to the senators who will sit in judgment of him, and he appears to be staking out ground as a voice for everyday Americans — and for Congress and the courts — against an expansive executive branch.
Asked to summarize his most important cases, Judge Gorsuch singled out a couple of cases where he sided with defendants against federal power, including one in which he said the Bureau of Prisons wronged an American Indian inmate by denying him access to a sweat lodge, which was part of his religion.
He also led off his list with a 2016 opinion he wrote criticizing judges’ willingness to cede their own powers to the growing scope of federal regulatory agencies. He said courts deferring to bureaucratic decisions may violate the Constitution’s guarantees of due process and could raise separation of powers concerns.
Senate Judiciary Committee Chairman Chuck Grassley, who will oversee the confirmation process, said the judge worked “diligently to return his questionnaire in a timely fashion.”
“Much of Judge Gorsuch’s extensive body of judicial and academic work is already publicly available, including the roughly 2,700 cases he has participated in. He has written 240 opinions, including 175 majority opinions, as well as dozens of additional separate writings,” Mr. Grassley said.
Democrats are already vowing a rough confirmation for the judge, saying that because he was picked by President Trump, he’ll have to make a proactive show of independence.
“We have a president who is overreaching dramatically, who shows little respect for rule of law, who seems to violate the Constitution in his first three weeks, and intimidates judges who have cases before them,” Senate Minority Leader Charles E. Schumer, New York Democrat, said on CBS’s “Face the Nation” program. “This demands a new standard, a much more independent justice than in the past, because, after all, the Supreme Court is our last refuge against a president who overreaches, who doesn’t respect balance of power.”
But Republicans said the judge’s performance so far shows he’s part of the legal mainstream. “The American people deserve more than the reflexive partisanship and panicked talking points of last week,” said Sen. Ben Sasse, Nebraska Republican.
He challenged senators to dig through the judge’s filing and make an informed decision. “We’ve got a lot of reading before the committee’s hearings,” he said.
One thing they won’t find is a long record of cases overturned by higher courts. “To my recollection, no opinion I have authored has been reversed by a reviewing court or affirmed with significant criticism,” the judge wrote in his answers.
He said in one instance the Supreme Court did vacate a ruling of his, but only after issuing a new opinion with further guidance. He identified two other opinions where he joined a ruling — but didn’t write the opinion — that was overturned by the Supreme Court. One was a tax case from Colorado dealing with whether federal courts should intervene.
The other overturned case was a mandatory minimum sentencing case where the appeals court had stuck with an original sentence, but the Supreme Court ordered a new review in light of the justices’ precedents. The review still upheld the original sentencing, and the Supreme Court declined to vacate it a second time.