Evaluating a U.S. Supreme Court nominee in a fair-minded way is hard because we naturally think about how we would act as a justice. If you are passionate about a policy issue — whether it relates to the environment, health care, women’s rights, or something else — you might see the Supreme Court as a way to affect policy in that area. You also may assume that the nominee will try to shape policy in the same way as the president who nominated him or her.
This appears to be the flaw in a Feb. 27 BDN OpEd in which its authors suggest that Judge Neil Gorsuch, who President Donald Trump nominated to the Supreme Court, would act to implement a “radical conservative agenda.” The problem is, that’s just not Neil.
Judge Gorsuch’s record on the bench demonstrates an unwavering commitment to neutrally applying the law wherever it leads him, regardless of how he personally feels about the result.
When Hobby Lobby sued the federal government over the contraception mandate in the Affordable Care Act, for example, the legal issue was whether the government can force a family-owned business to provide contraceptive coverage to its employees, overriding the owners’ sincerely held religious objections to doing so. Judge Gorsuch voted with the majority of the 10th Circuit Court of Appeals to hold that the Religious Freedom Restoration Act prevents the government from forcing business owners to violate their religious convictions. Judge Gorsuch explained that while the owners’ beliefs were “contestable,” even “offensive” to some people, no one disputed that they were sincere. He continued by noting that the act “does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
Following the law is not a partisan approach. Take Judge Gorsuch’s 2014 decision in Yellowbear v. Lampert. In this case, Wyoming prison officials denied a convicted murderer access to the prison’s sweat lodge; that is, a house of prayer and meditation for people who shared the prisoner’s Native American religious tradition. Judge Gorsuch didn’t rule for the prison over the prisoner, as a partisan approach might predict. Instead, joined by a Reagan appointee and an Obama appointee, Judge Gorsuch reversed a lower court’s decision, allowing the prisoner’s claim to proceed.
What’s more, the role of precedent is extremely important to Judge Gorsuch. He and a number of liberal and conservative colleagues recently collaborated on the 942-page “ The Law of Judicial Precedent,” a treatise on the doctrine of precedent. And in multiple cases Judge Gorsuch has rejected arguments he agreed with because precedent compelled him to do so. In a 2016 appeal, for example, Judge Gorsuch agreed with a criminal defendant in his challenge of a firearm conviction that the relevant statute required the government to prove both that the defendant knew he possessed a firearm and that he knew he was a felon. But the court had previously rejected that view. So Judge Gorsuch did not apply his preferred interpretation, explaining that “all of us are obliged to respect” the “court’s binding precedents.”
What is most unfair about the recent criticism in the BDN is the suggestion that Judge Gorsuch is out to harm women. This charge the authors level against a judge who has regularly decided in favor of women suing on the basis of sex discrimination and sexual harassment. In one case, for example, a woman claimed that her employer eliminated her position, created a new one, and hired a less-qualified man. The lower court held that she had not properly preserved her gender-discrimination claim, but Judge Gorsuch disagreed and the woman ultimately prevailed. In another case, Judge Gorsuch joined a Carter appointee in allowing a woman to proceed with a hostile-work-environment claim asserting that her supervisor directed “abusive,” “profane” and “loud” behavior mainly at female attorneys over age 40, including her. In a 2016 case, Judge Gorsuch voted to prevent a rape defendant from using one of his own text messages as evidence that the victim had been “flirting” with him.
I know Judge Gorsuch as Neil. We attended law school together and remain friends. I have never viewed Neil as partisan, strident, or disrespectful of anyone. He is the opposite — a thoughtful and compassionate person who believes in the dignity of all people and lives that belief in all aspects of his life. If confirmed, Neil will not follow anyone’s agenda; he will follow the law.
Michael Bopp is a partner at the law firm Gibson Dunn in Washington. He previously served as program associate director in the federal Office of Management and Budget and as staff director and chief counsel for the Homeland Security and Governmental Affairs Committee under Sen. Susan Collins. He grew up in Portland.