Judge Neil Gorsuch: The Type of Judge Envisioned by Our Framers

Within the last week, there have been many opinions and editorials written by the legal experts and supporters of Judge Gorsuch. He has actually racked up quite the list of supporters--liberal and conservative, Republican and Democrat, lawyers and non-lawyers. Judge Gorsuch is continuing to add to his list of supporters, now including two former chief judges from the Tenth Circuit: Deanell Reece Tacha and Robert Henry.

The Judges take a slightly different approach in their article. They look at the confirmation process a bit differently, undoubtedly, in part due to their own confirmation experiences as former federal circuit court judges. They emphasise the need for the Judiciary to remain independent and not to cave on Senators' questions that could erode this independence.

Our primary Framer for the courts was none other than Alexander Hamilton, of recently renewed fame. Describing the judiciary in Federalist 78 as the “least dangerous” of the three branches of government, Hamilton emphasized that the “complete independence of the courts of justice is peculiarly essential in a limited Constitution.” This “independence of the judges” is a most sacred tradition in U.S. constitutional law, requiring all judges to have no obligations to those who nominated or confirmed them.

Besides — as history has revealed — it is not even possible to select Supreme Court justices based on how they might rule on given topics. Detailed discussions during the confirmation process on issues that might come before a judge are not proper; in fact, they would in all likelihood require recusals from the cases discussed. Litmus tests are not acceptable. Furthermore, the controversies that go before the court often bring unique and complicated facts that could completely change a judge’s sincerely espoused view.

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We are both former chief judges on the U.S. Court of Appeals for the 10th Circuit. One of us is a lifelong Republican; the other, a lifelong Democrat. We both had the opportunity to serve with Gorsuch for several years on the 10th Circuit. He was, like most good judges, assiduously attentive to the facts and law in each case. All of the matters mentioned above (and others) should influence — or even change — a judge’s decision dealing with the specific set of facts in any case before him or her.

Gorsuch’s body of work is surely informed by both textualism and originalism, but he was, in our experience, always open to consideration in the proper cases of precedent, history, tradition and the “bones” of our federal republic’s structure. Other important traits of Gorsuch that are not likely to change: his fair consideration of opposing views, his remarkable intelligence, his wonderful judicial temperament expressed to litigants and his collegiality toward colleagues.

If we seek to confirm to the Supreme Court a noted intellect, a collegial colleague, and gifted and eloquent writer — as well as a person of exhibited judicial temperament — Gorsuch fits that bill. He represents the best of the judicial tradition in our country. We think that Hamilton would concur.

Judge Gorsuch wrapped up his testimony tonight.  Tomorrow, an expert panel will testify on Judge Gorsuch's credentials and qualifications. A final vote is expected in early April.

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