Law Profs: Judge Gorsuch’s Record Puts Him Well Within Nation's Legal Mainstream

By Barbara Hollingsworth | February 2, 2017 | 11:22 AM EST

President Donald Trump announces that he is nominating 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court at the White House on Jan. 31, 2017. (AP photo)

(CNSNews.com) – Although Senate Minority Leader Chuck Schumer (D-NY) says he has “serious doubts” about whether Neil Gorsuch, President Trump's Supreme Court nominee, is in the country's legal mainstream, several law professors told CNSNews.com that the Denver appellate judge's record is squarely within that mainstream.

Schumer (D-NY) voted to confirm Gorsuch for the 10th Circuit Court of Appeals in 2006, but now says that “the burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the Executive branch and protect the constitutionally enshrined rights of all Americans.

"Given his record, I have very serious doubts about Judge Gorsuch's ability to meet this standard," Schumer said.

But a number of law professors told CNSNews.com that attempts to portray the conservative jurist as an outlier who is outside the nation’s legal mainstream are at odds with reality, with most predicting that Gorsuch will be confirmed by the Senate.

The argument that Gorsuch is out of the mainstream is absurd,” Jonathan Adler, a constitutional law professor at the Case Western Reserve University School of Law, told CNSNews.

In a February 1 column in The Washington Post, Adler also pointed out that “the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for [not confirming Obama nominee Merrick] Garland is complete and utter nonsense,” pointing to Democrats’ vote to filibuster then-Supreme Court nominee Samuel Alito in 2006.

“As the record plainly shows, Senate Democratic leaders and progressive activists…are instead pushing Senate Democrats to simply do what they’ve done before and said they would do again,” Adler wrote.

“I think [Gorsuch] is an excellent nominee.  His views are well within those of justices that Republican presidents have nominated and the Senate has confirmed in the past,” John Yoo, a professor at the University of California at Berkeley School of Law, told CNSNews.

“If Gorsuch is an extremist, then Democrats are saying that Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and indeed the late Justice [Antonin] Scalia are extremists.

“Liberals may disagree with an approach to interpretation based on the constitutional text and history, but that is well within the mainstream,” added Yoo, who once clerked for Justice Thomas.  “In fact, it is the one that most Americans would support over an alternative that allows judges to advance a living Constitution.

“I expect [Gorsuch] will be confirmed, and if Democrats were smart they would join Republicans to do so,” Yoo added. “But I expect that Democrats will launch a bruising fight, one that they will lose.”

“Gorsuch is an outstanding jurist,” agreed Professor Ilya Somin, who teaches at the George Mason University Antonin Scalia School of Law.

“I think his decisions are well within the mainstream, with one notable exception: His stance on Chevron deference, where he would eliminate judicial deference to administrative agencies in cases where the law is ambiguous.

“Gorsuch's views on this question are a significant challenge to the dominant mainstream view,” Somin told CNSNews. “Personally, I happen to think Gorsuch is correct on this issue. But at least until recently, very few judges were willing to go so far.

“It is possible, however, that what we are seeing is the beginning of a breakdown of the mainstream consensus on this question. Even with Gorsuch on the court, Chevron is highly unlikely to be overruled any time soon. But it will become a disputable issue rather than unquestioned dogma.

“As to whether he will be confirmed, I think it is highly likely that he will be,” Somin added. “I doubt anything can stop him other than some major, unforeseen scandal or other unexpected damaging revelation.”  

Douglas Laycock, a law professor at the University of Virginia School of Law and one of the nation’s leading scholars on religious liberty issues, explained that Democrats consider Gorsuch to be “out of the mainstream” because of his conservative philosophy, which many Americans do not share.

“Political scientists with quantitative measures say he is more conservative than Justice Scalia. That is not where the country is,” Laycock told CNSNews.

The Gorsuch nomination “is not an attempt to meet Democrats and the national majority that voted for [Hillary] Clinton even part of the way,” he pointed out. “And that is what opponents mean by out of the mainstream.”

But Arthur Hellman, professor of law at the University of Pittsburgh School of Law, pointed out that Gorsuch has a record of deciding cases that have pleased both conservatives and liberals, proof that he is well within the nation’s legal mainstream.

 “I don’t think Judge Gorsuch’s rulings are out of the mainstream, unless you define ‘mainstream’ as ‘invariably liberal’,” Hellman told CNSNews. “He has ruled in ways conservatives like, as in religion cases, but also on the liberal side, as in Fourth Amendment cases.

“People who are doubtful about Judge Gorsuch should read his dissenting opinion in U.S. v. Carloss, decided by the Tenth Circuit on March 11, 2016. In addition to being beautifully written, it’s a strong defense of individual rights against government intrusion,” the professor pointed out.

“I do expect that Judge Gorsuch will be confirmed by the Senate. As long as the filibuster remains in place for Supreme Court nominations, that will require 60 votes, which means eight Democratic votes. I think it’s likely that eight Democrats will join all Republicans in voting to confirm,” Hellman added.

“But if they don’t, there’s a good chance that the Republicans will abolish the filibuster for Supreme Court nominations, as the Democrats led by Harry Reid did for all other executive nominations.”