I served with Neil Gorsuch on the U.S. Court of Appeals for the 10th Circuit for more three years, before I left the bench to teach constitutional law at Stanford University.
I sat with him in about 50 cases. Sometimes we disagreed, strongly. More often, we agreed. I want to share my impressions of Judge Gorsuch because I assume that most Americans are fair-minded enough to evaluate him on the basis of his character, his ability, and his judicial temperament. In my opinion, based on my personal knowledge of Neil Gorsuch as a judge, the president could not have made a finer appointment.
I will not dwell on Judge Gorsuch’s sterling credentials: Columbia University Bachelor’s degree, Harvard Law School degree, Oxford University doctorate, successful private practice, and unanimous confirmation by the Senate. Those are on the public record. Nor will I parse his many well-crafted opinions as a judge. Those are being analyzed—and spun—by advocates on both sides.
I want to discuss Judge Gorsuch as a colleague and a human being, and offer some more speculative thoughts about where his constitutional views may fit in these crazy times. I actively worked in favor of the confirmation of Elena Kagan, wrote in support of Stephen Breyer, and testified in support of Robert Bork, so I do not think these comments will be read as one-sided or partisan.
I first met Judge Gorsuch in 2006. I was immediately struck by his intellectual seriousness and his open and gracious personality. He treats everyone with respect. Not just fellow judges, but lawyers, law clerks, and court personnel—everyone. When discussing a point of law, Gorsuch listens and learns. He does not act as if he always knows the answers. I have seen him change his mind as a result of discussion.
This quality of mind is particularly evident during oral arguments in court. Unlike some judges who treat oral arguments as a chance to make their own points, Gorsuch actively engages with lawyers, listens carefully to their positions, asks penetrating questions, and reflects fair-mindedly on what they have to say. Afterward, in the conference room with the other judges on the panel, he would similarly engage in a mutually respectful exchange of ideas. Never did I hear him speak dogmatically, or lose his temper, or allow any considerations to intrude other than good faith interpretations of the law.
These qualities also inform his opinions. Many have commented on Gorsuch’s writing skill, and it is true that he is one of the best writers in the judiciary today. More important than style, though, is that he sets forth all positions fairly and gives real reasons—not just conclusions—for siding with one and rejecting the other. And he does it in language that is accessible to non-lawyers. Courts have awesome power over people’s lives, and it is important that they give reasons that all citizens can understand (even if they do not agree).
Judge Gorsuch is unfailingly cordial and collegial, not as a mere matter of etiquette, but in the deeper sense of intellectual engagement even with, or perhaps especially with, colleagues with whom he might not be in agreement. Antonin Scalia, whom he is nominated to replace, was a pugnacious lover of intellectual battle, often caustic in rhetoric and inclined to sharpen differences. Based on my experience, Gorsuch has the opposite temperament. He inclines toward finding common ground, and is scrupulously respectful of the other side, in tone and in substance.
Judge Gorsuch also is deeply committed to following precedent as a central feature of the rule of law. Many was the time he and I would debate the exact meaning of a prior decision, or lament instances when we thought our colleagues were failing to follow precedents they did not like. In fact, he literally wrote the book on the subject—he is one of the contributing authors of a legal treatise entitled The Law of Judicial Precedent.
From his first days on the court, Judge Gorsuch was an independent thinker, never a party liner. I asked my research assistant to examine every case in which Gorsuch sat with a mix of Republican- and Democratic-appointed judges, and we reached divided conclusions. In the past five years, in almost one-third of those cases, Gorsuch voted with his liberal colleagues, not with the conservatives. That is the record of a moderate, fair-minded, nonpartisan jurist.
This is not just my opinion. Liberal and progressive law professors all over the country, not caught up in the politics of the day, have come to the same conclusion. No one agrees with all of Judge Gorsuch’s opinions. I certainly don’t. But they are without exception thoughtful, moderate, and independent.
Gorsuch is undoubtedly conservative, but he has not the slightest touch of the extreme. Those who describe him as “outside of the mainstream” would have to say the same of any Republican appointee. He is about as “far right” as Elena Kagan is “far left” (though, to be fair, some Republicans said that about her, with as little basis).
The best description of Gorsuch is that he is a constitutionalist rather than a partisan. In the years ahead of us, when a set of issues will arise that the country has never seen before, this is exactly the kind of justice Americans of all political stripes should hope for.
Michael W. McConnell is a professor of constitutional law at Stanford University. He served as a judge on the U.S. Court of Appeals for the 10th Circuit from 2002 to 2009. He was a law clerk for U.S. Supreme Court Justice William J. Brennan Jr. and is of counsel to Kirkland & Ellis.
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